"APPEAL, v. t. In law, to put the dice into the box for another throw." Ambrose Bierce
An appeal is a legal proceeding in which a party, the appellant, asks a higher court to reverse a lower court's ruling. But an appeal isn't another trial or a new opportunity to argue what the evidence proves. An appeal involves only argument on points of law-for example, whether the trial court followed correct procedures, ruled correctly in granting or overruling objections, and correctly applied the law to the case.
When can a party appeal?
An appeal usually happens after the trial is finished and the trial court enters a judgment. Only a few kinds of orders can be appealed before the entry of a final judgment. Whether an order can be appealed before judgment is entered depends on whether a statute makes the order appealable.
One example of an order that can be appealed before final judgment is a ruling on an injunction. One party may ask for the court to prohibit another party from taking some action while the case is being litigated. The court's order granting or denying the injunction can be appealed immediately.
In family law cases, orders requiring a party to pay money while the case is pending-spousal support, child support or attorney fees-are immediately appealable. On the other hand, temporary child custody orders cannot be appealed; only a final custody judgment is appealable.
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How long will an appeal take?
A lawsuit can take years to get to trial. Appeals usually take about a year and a half to two years from filing the notice of appeal to decision. Of course, there are exceptions and some cases take much longer.
In the last year for which statistics are available in California, the median time statewide was about 16 months, 487 days; half of the appeals took longer and half took less. 90% of appeals were decided within 724 days, or just under two years.
But the times vary quite a lot from court-to-court. The fastest California appellate court disposed of 90% of its cases in 18 months or less. The slowest took a year longer, more than 29 months or almost two and a half years.
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The process in a nutshell.
The first step is filing a notice of appeal with the trial court. The appellant, the party who has appealed, must then obtain a record of the trial court proceedings. Once the record is filed in the court of appeal, the parties submit briefs-written legal arguments. After the appellate court has reviewed the briefs and the record, the court may or may not order an oral argument before issuing its decision.
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Filing the notice of appeal.
An appeal starts with filing the notice of appeal in the trial court. The timing is critical. If a notice of appeal it is filed too early, it is premature the court of appeal can dismiss the appeal. But if it is too late, the court of appeal cannot hear the case. Once the time to file an appeal has run, the appellate court loses jurisdiction-the power to hear an appeal.
The time begins when the trial court enters the judgment or appealable order. In California, the normal time to file an appeal is 60 days from the date that the court or a party mails notice that the judgment was entered. If notice of entry is not sent, the time can be as long as 180 days from the date that the judgment was entered.
An appeal can never be taken more than 180 days after entry of judgment, with one small exception: if the last day falls on a Saturday, Sunday or court holiday, then the notice of appeal can be filed on the next day that the court is open.
These are the general appeal times that apply in the great majority of cases. But in a few special types of actions, the time to appeal is shorter, as little as 10 days.
In federal court, the normal time to appeal in federal is 30 days from the entry of judgment. If the federal government was a party, then the appeal can be taken as long as 60 days after entry of judgment.
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Can the time to appeal be extended?
In California, if a notice of appeal is too late, the appellate court has no power to hear the appeal. No extension is possible.
Federal courts allow a 30-day grace period if the district court finds "excusable neglect or good cause." But if there was no excusable neglect or good cause, a late notice of appeal will be ineffective.
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What about cross-appeals?
Sometimes, both sides are dissatisfied with the judgment may want to appeal. Suppose that the trial court awards plaintiff a judgment for money. The defendant may appeal and argue that plaintiff should not have won anything. Plaintiff, on the other hand, may feel that the court did not award enough damages and file a cross-appeal.
There are special rules and procedures in cross-appeal cases.
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Designating the record.
Once the appeal has been filed, the next step is to designate the record-that is, to notify the trial court clerk what documents to transmit to the court of appeal so it can review the trial court proceedings.
The record usually consists of two parts. One portion will consist of copies of relevant documents that were filed in the trial court-typically, the plaintiff's complaint, defendant's answer, papers in support of and in opposition to various motions, the court's orders and the judgment.
In California this portion of the record, when it is prepared by the trial court clerk, is called the "clerk's transcript." The parties may also prepare this portion of the record themselves, in which case it is called the "appendix." In federal appeals, the relevant trial court documents are referred to as the "excerpts of record."
The second part of the appellate record will be the court reporter's transcript of the oral proceedings in court. A reporter's transcript is usually necessary after a trial so that the court of appeal can see what the witnesses testified. The transcript may also be necessary to show that the appellant's attorney made proper, timely objections to actions of the trial court that appellant claims were improper.
In some cases, such as when a case has been dismissed on motion without a trial, it may not be necessary to have a reporter's transcript. Usually, however, a reporter's transcript will be necessary to show the court of appeal what was before the trial judge when he or she ruled.
Once the record has been prepared, it is filed with the trial court clerk, who then transmits it to the court of appeal. That is when the real work of the appeal begins.
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Just what is a brief?
The brief is the heart of an appeal. It is the written explaining the facts of the case and why the trial court's ruling that has been appealed should be reversed or affirmed.
Franz Kafka has been credited with saying that lawyers are "persons who write a 10,000 word document and call it a brief." He probably would have been dismayed to learn that court rules allow briefs as long as 14,000 words, in some cases, even longer.
Most appeals are won or lost based on the briefs. Oral argument rarely affects the outcome. For that reason, most of the appellate lawyer's time will be spent in preparing the briefs.
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The hallmarks of a good brief are:
- Clarity. The brief should be clear, direct and logical. An appellate judge and his or her staff must read literally dozens of briefs every week. A good brief is one that presents an argument succinctly and in a way that can be readily understood.
- Honesty. The brief must fairly present the facts and supporting evidence. The cases, statutes and other legal authorities must fairly support the rule or principle for which they are cited. A party who files a brief that misstates the facts or law loses credibility.
- Accuracy. Trial court records are often thousands of pages of reporter's transcripts, trial exhibits, pleadings, motions and other documents. Every fact stated in the brief must be supported by a reference to the record that directs the court to where it can find the supporting testimony, evidence or other material in the record. Likewise, citations to legal authorities must allow the judge and his or her staff to pinpoint cases and holdings in the thousands of law books. The citations to the record and to supporting authorities must be precise and accurate to avoid wasting the court's time. Appellate courts sometimes say in decisions that they will not comb through the record to find evidence or material supporting a party's assertions in a brief.
- Brevity. Judge Alex Kozinski of the Ninth Circuit Court of Appeals said it best in an article on sure ways to lose an appeal:
First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief. . . . [L]et the judges know you don't have an argument capable of being presented in a simple, direct, persuasive fashion. Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper. . . .
[W]hen judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief.
Writing a brief that meets all of those criteria takes time. It can't just be tossed off in a single, stream-of-consciousness draft. A brief will usually go through at least three drafts; many go through more. The process will take several days, often weeks.
Once appellant has filed an opening brief, the other party-"respondent" in the California courts, "appellee" in the federal courts-may file a brief arguing that appellant's brief is wrong and the trial court should be affirmed. Appellant then has an opportunity to file a short reply brief.
Appellant's opening brief is the most critical one. Appellant always has the burden to show that the trial court committed some kind of error that is serious enough that the appellate court must overturn the judgment or order that has been appealed. Even if respondent does not file a brief, appellant does not win by default; the opening brief must still convince the court of appeal to reverse.
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Who decides the appeal?
In the trial court, a single judge decides the case. In an appellate court, the case will be decided by at least three judges. In the United States Supreme Court, there are nine justices. The California Supreme Court has seven.
An appellate judge or justice usually has many years of experience as an attorney followed by several years as a trial judge.
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What happens when you go to court?
In an appeal, witnesses don't testify and the parties don't offer documents or other exhibits in evidence. That happened in the trial court.
The only court appearance is a short oral argument by the attorneys. In many cases, the argument is only a few minutes. Thirty minutes for each side is usually the maximum.
The reason is that, by the time of oral argument, the justices who are deciding the case have read the briefs, reviewed the record and researched the law. They have probably reached a tentative decision. The oral argument is a chance for the parties to elaborate points that were made in the briefs and for the judges to clarify their understanding of the facts and the law.
The process often involves a fair amount of back-and-forth between the judges and the attorneys. The judges will ask questions, some of them quite pointed-what does the evidence show on this point? how does the attorney deal with a statute or judicial precedent? if the facts were a bit different, how would that affect the argument?
Although the argument is short, preparation will take at least several hours. In cases that reach the higher courts, preparation may take weeks. The attorney must be completely familiar with all aspects of the case, since he or she must be ready to respond to the court's questions immediately in light of the record and the relevant law. If the case raises an issue that has not been decided before or the court is asked to extend or modify existing law, the attorney must also be thoroughly familiar with policy considerations that would favor a decision one way or the other to be able to persuasively why the court should adopt the rule that favors his or her client.
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How does the court render its decision?
Trial courts often state their rulings simply as conclusions: "The motion to dismiss is granted," or "Plaintiff shall have judgment against defendant for $35,000." Many trial court rulings are made from the bench without a written order at all.
Appeal courts issue written opinions, although in some appellate courts, an opinion may be a fairly terse memorandum. In California, the appellate courts must issue a written decision in every appeal.
Through much of American history, virtually all decisions of the appellate courts were published in volumes of official case reports and could be cited as precedents. In recent years, however, fewer and fewer cases have been published as precedents. Today, only about 10% of the decisions of the California Courts of Appeal are published, although all decisions of the California Supreme Court are published.
An unpublished decision cannot be cited as precedent in other cases. But it is still binding on the parties to the appeal.
Trials exist in our system of justice because the parties disagree about the facts. In an automobile injury case, for example, the trial court may have to determine whether defendant was negligent and, if so, whether that negligence was the actual cause of injuries that plaintiff claims to have suffered.
Evidence in a trial is often conflicting. Witnesses may give inconsistent, even completely contradictory, versions of the events. Frequently, the evidence can be interpreted different ways-or, as the courts put it, the evidence will support different reasonable inferences. Some of those inferences may favor plaintiff, others may favor defendant.
It is the job of the jury-or, in a bench trial, the judge-to decide what facts the evidence proves. To do that, the jury or judge may have to decide which witnesses are most believable, which exhibits are most trustworthy, how much weight to give any particular evidence, and which inferences are the most reasonable.
An appellate court, however, cannot second-guess the jury or trial judge on these issues. The appellate court only considers arguments about the law, not the facts. So, an appeal court cannot decide that the jury should have believed one witness over another. If the evidence might reasonably be construed to support one party or the other, the appellate court cannot decide that the jury should have construed it in the way that supports the party who lost at trial, rather than the party who won.
As one court said in a classic statement of the rule, appeal courts "have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom." Overton v. Vita-Food Corp. 94 Cal.App.2d 367, 370 (1949).
So, when the appellate court looks at the record, the court's only concern is whether there is substantial evidence in the record that would allow the trial court to make the ruling or judgment that has been appealed. The appellate court accepts the evidence that supports the ruling. Where evidence could be construed different ways-as the appellate courts put it, different reasonable inferences could be drawn from it-the appellate court will construe it in the way that supports the trial court.
Some cases go so far as to say that evidence or inferences that are contrary to the judgment are simply ignored. Other cases are not quite so unforgiving, but the strong general rule is that the appellate court must view the evidence in the way that most strongly favors the trial court's ruling. The appellate court cannot overturn a verdict or a trial judge's factual finding unless, viewed in that light, there is no substantial evidence in the record supporting the verdict or finding.
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What if the trial judge abused his or her discretion?
Many decisions are left to the trial judge's discretion. Child custody is a good example. Even though the parents are no longer husband and wife, they are still mother and father, and working out arrangements that will allow each of them to continue to have an effective relationship with the children is one of the most delicate and difficult problems that a trial court faces. The decision is left to the sound discretion of the trial judge.
Appellate courts rarely overturn discretionary rulings. The court of appeal must be convinced that the judge abused his or her discretion. Many cases hold that a trial court does not abuse its discretion unless, looking at the evidence in the light most favorable to the trial court's ruling, no judge could reasonably make the same decision.
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What does an appeal cost?
Appeals are expensive. Most appellate attorneys charge by the hour. The typical appeal requires the equivalent of about two to three weeks of full-time work-80-120 hours or more. Although oral arguments are short, preparation usually takes several hours, sometimes days.
Fees will mount quickly.
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If there was a trial, the reporter's transcript will add additional expense. A full day of trial will run about $650. The transcript of a trial that ran ten full days will cost about $6,500.
Another expense often overlooked is judgment interest. In California, judgments currently earn interest at 10% per year. If a case is on appeal for two and a half years, interest alone will add 25% to the judgment.
If appellant posts a bond to stay enforcement of the judgment, the premium on the bond must also be considered.
But there are still other expenses that must be considered. If the trial court threw the case out before trial, reversal will put the case back on track to go to trial. If the case went to trial and the appeal is from the final judgment, if the appeal court reverses it will most likely order a new trial. So, winning the appeal means that appellant will have to face the prospect of still more legal expenses for further proceedings in the trial court.
If the case does go to trial, there's no guarantee that appellant will win, or will win enough to justify what it cost to take the appeal. If the appellate court reverses a judgment after trial and sends the case back for a new trial, there's no guarantee that appellant will win. Appellant could lose again, worse than the first time. Much, much worse.
An especially dramatic example was a personal injury case in which first trial resulted in a judgment against defendant for $1.1 million. Defendant appealed and convinced the California Supreme Court that the trial court erroneously refused to give a jury instruction that defendant had requested that would have allowed the jury to find that plaintiff's injuries were, in part, the result of his own negligence. The Court sent the case back for a new trial. This time, the judgment was $9.2 million, and this time the California Supreme Court affirmed.
It can even get worse. In some kinds of cases-most commonly, contract disputes-the winning party is entitled to attorney fees. If the case is appealed and the judgment affirmed, the winner is entitled to attorney fees on appeal, as well. Since about 75% of appeals lose, in a case where the prevailing party is entitled to attorney fees, the odds are about 3 to 1 in these cases that appellant will not only have to pay his or her own attorney fees, but will end up having to pay the opponent's attorney fees, as well.
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