The Civil Appeals Process

An appeal is very different from a trial. No evidence is presented for a judge or jury to weigh. No witnesses are called. Almost the whole appeal is conducted on paper. And instead of there being just one judge, there is a panel of three (and, occasionally, more). An appeal is not a second trial, but an opportunity to correct legal error that was prejudicial.

Which Jurisdiction?

Whether your appeal will be heard in state or federal court depends on where the lawsuit has been litigated thus far. If you are appealing a case that was litigated in state court, your appeal will go to the California Court of Appeal. The decisions of the California Court of Appeal are subject to review by the California Supreme Court.

The California Court of Appeal is divided into six districts, some with courts in more than one location. Cases are sent to the district in which the trial court is located.

The federal Court of Appeals acts as the court of review for decisions of the federal trial courts – known as “district courts” – within its jurisdictional area. It also has jurisdiction to review district court appellate decisions in bankruptcy cases and decisions of the Bankruptcy Appellate Panels. In addition, it reviews directly certain decisions of federal administrative agencies and the tax court. The decisions of the federal Court of Appeals are subject to review by the United States Supreme Court.

The federal appellate system is divided into “circuits.” California is covered by the Ninth Circuit, which also embraces a number of other western states. Within California, the Ninth Circuit has locations in San Francisco and Pasadena.

The basic function of the appellate process is the same in federal court as in the state system – in other words, the process is not to retry cases, but to look for prejudicial errors of law. However, appeals in federal courts are subject to a different set of procedural rules from those in state court. (Except where stated to the contrary, the information provided in the following procedural description refers to the California state courts.)

Notice Of Appeal

The first procedural step is to file the notice of appeal. In both the state and federal systems, this is filed in the trial court – and it must be done within a specified time. If a party is late, the Court of Appeal will have no jurisdiction and the matter will never be heard.

The notice of appeal should identify each order or judgment being appealed. However, unlike the notice of a motion in a trial court, a party does not need to provide a short statement of the grounds.

Determining what constitutes an appealable order can itself be tricky. The final judgment in a trial is, obviously, appealable – as is the final judgment dismissing a case without trial. But some other orders may also be immediately appealable, although most are not – the system’s general preference is that you should batch all of your grievances in one appeal at the end, rather than file them on a piecemeal basis. (Keep in mind, though, that nonappealable orders may be subject to challenge by a “writ petition.” Writs are discussed elsewhere on this web site.)

The consequences of making a mistake with this initial determination can be serious. If an order is not appealable, a litigant will waste money by starting an appeal. Worse still, if an order is appealable, but a litigant does not realize this, the appeal may have been waived if not filed in a timely manner. It is sometimes far from intuitive as to which orders that do not dispose of an entire case are among the minority that are immediately appealable.

Determining the deadline for filing the notice of appeal can also be surprisingly tricky. There are various possible deadlines depending on how the judgment being appealed was noticed to the parties and also on whether post-trial motions were filed.

Rule 2 of the California Rules of Court defines what it terms the “normal” deadline in state court as the earliest of:

(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment.

With federal appeals, a litigant is usually up against a 30-day clock to file the notice of appeal – although it is not always intuitive as to when that clock starts.

The filing of the notice of appeal is the start of a lengthy process. Although the steps outlined below may not appear numerous, the whole process generally takes 12-18 months and sometimes more.

Preparation Of The Appellate Record

The “record” on appeal is the universe of material about what took place in the trial court. For the most part, the parties can only make arguments based on what is in the record. If something is not in the record, it does not exist for appellate purposes.

The record consists of a transcript of the trial court proceedings together with various documents that were filed in the trial court. The record is assembled in tidy bound volumes.

In the California Court of Appeal, the transcript is known as the “Reporter’s Transcript.” The document portion of the record is known as the “Clerk’s Transcript” – that term is a little confusing, because the Clerk’s Transcript is not, in fact, a “transcript” in the commonly used sense of that word.

The Reporter’s Transcript and Clerk’s Transcript are prepared by the trial court, and are then sent to the Court of Appeal. As an alternative to having the trial court prepare a Clerk’s Transcript, the parties can self-assemble something that is equivalent, which is known as an “Appendix.”

The party bringing the appeal has the responsibility to decide what goes into the record, although the other side can augment it if important things were left out. As a general rule, the Court of Appeal will only reverse error that is apparent in the record. The proper compilation of the record is, therefore, crucial. Decisions about the record have to be made very early on in the appeals process. It may be possible to augment the record later on, but there is no absolute right to do so.

Briefing

Typically, the time from when a notice of appeal is filed until the time when the record is delivered to the Court of Appeal is about three months, although it can be longer or shorter. The delivery of the record starts the clock for written briefing.

The default deadline is that the opening brief of the “appellant” – the party bringing the appeal – is due 30 days after the record is filed. This brief from the opposing party – known as the “respondent” – is due 30 days after that. The appellant then has an opportunity to have the last written word with a shorter reply brief, which is due 20 days after the respondent's brief. In practice, it is very common for these periods to be extended by 30-60 days per brief and sometimes more.

The written briefs are by far the most important part of an appeal. There is more about briefs in the section of this web site discussing appellate skills.

Motions

At various stages of an appeal, each side may bring written motions. Like motions in trial courts, these can raise both procedural and substantive issues. They can range from simple requests (technically known as “applications”), such as ones for extensions of time, to motions seeking the involuntary dismissal of an entire appeal. There is generally no oral argument with appellate motions – it is all done on paper.

The importance of appellate motions should not be overlooked. As the Court of Appeal remarked in one published opinion, “[t]hough among the least celebrated functions of appellate courts, the processing of a wide range of motions, applications and other requests for relief during the pendency of an appeal is an important aspect of the appellate process.” (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 193-194.)

Settlement Procedures During The Appellate Process

Settlement of cases after trial has long been part of the civil litigation process.  For example, it is quite common for the losing party at trial to offer not to appeal if the winner accepts reduced damages. Likewise, a party defending a trial court outcome might be willing to make some compromises in order to avoid the uncertainties, expense, and delays of an appeal.

In recent years, the courts themselves have become involved in facilitating mediation between parties after an appeal has been filed. Within the state appellate system, some districts are more proactive than others when it comes to promoting settlement.

There are differing views as to how desirable it is to have appellate courts actively promote settlement through mediation. Some see it as a means of reducing workloads during a time of budgetary constraints. Others take the view that this interferes with the core role of the appellate courts, which is to decide cases and, thereby, add to and enrich the common law.

Oral Argument

At some point after briefing, the parties are given the opportunity to have oral argument in front of the panel of three judges deciding the case. Oral argument is short and typically involves not so much a lawyer delivering a monologue, as making an argument that is interrupted by pointed questions from the sharp minds on the bench. Often, the questions dictate the rest of the argument.

There is no right to oral argument in federal court. It is allowed except where a panel of three judges unanimously agrees that it is unnecessary.

Oral argument rarely turns around judges who had made up their minds after reading the briefs, but it can be crucial when they are sitting on the fence. (There is more about oral argument in the section of this web site discussing appellate skills.)

Decision

The court’s decision is usually issued in the form of a written opinion within 90 days of oral argument.

Beyond The Decision

If the decision is unfavorable, there are other procedures one can attempt – a petition for rehearing to the court that has just decided the appeal or trying to take the case to the California Supreme Court. However, these are not usually going to hold out much hope.

A petition for rehearing is generally only appropriate if there is an obvious error on the face of the court's decision, as opposed to a disagreement about the legal issues involved – for example, if the court clearly misstated an objective fact in the record or failed to address an issue. It is not appropriate to ask the Court of Appeal simply to think again about its legal conclusions.

If you just disagree with the Court of Appeal's decision, your next stop – if you can get there – is generally the California Supreme Court. (This assumes that you are appealing from a state court decision. If it began as a federal case, the progression would be from the trial court to the US Court of Appeals and then to the US Supreme Court.)

However, unlike the Court of Appeal, the Supreme Court has discretion about which civil cases it will take, and generally chooses only those involving unsettled areas of the law or issues of huge public interest. The Supreme Court is more likely to take a case if the Court of Appeal's decision was “published” – making it binding precedent – or if there was a dissenting opinion from one of the judges. A split among the different districts of the Court of Appeal on the same sort of issue will also tweak the interest of the Supreme Court.

In the 2003-2004 court year, the California Supreme Court filed opinions in a total of 116 cases, of which 53 were civil. This was out of approximately 8,500 petitions for review. Clearly, the odds of obtaining review are not great.

If you are unsuccessful at the California Supreme Court – either in terms of getting the court to take the case or in its decision on the merits – the next and absolutely final stop on the civil appellate road is the United States Supreme Court. That court also only takes cases on a discretionary basis – and it is even harder to obtain review there than at the state Supreme Court.

Typically, the US Supreme Court takes only about 80 cases a year. And that includes ones that come up from the federal Courts of Appeals, criminal cases, and cases brought by the US Solicitor General acting on behalf of the government. In fact, there is typically US Supreme Court review of only a dozen or so state court cases a year, including criminal ones. A basic threshold requirement for even having a theoretical chance of obtaining US Supreme Court review is that the case turns on issues of federal law (including US constitutional issues), not solely state law.

For the overwhelming majority of litigants, the first appeal will be the only appeal. That is why it is paramount that it be handled well.