Transition to appeal
You should ideally involve an appellate specialist no later than very soon after the issuance of the judgment or order that is going to be appealed — or, better still, when it first becomes clear that the judgment or order is likely to be entered.
This is particularly important if you lost in the trial court, because there may at this stage still be things to be done there to help set you up for the strongest possible appeal. This applies especially where the case ended with a trial, as opposed to something like a motion for summary judgment or other pretrial dismissal.
In particular, post-trial motions provide a final opportunity to ensure that a proper record is made of issues that may be raised on appeal. And certain issues will be waived on appeal if they are not first addressed in a motion for a new trial. Moreover, there is always the possibility that the trial court will correct error without an appeal being necessary.
In the case of bench trials, there is also the need for a statement of decision — without which the losing party at trial can be at a disadvantage when the case goes on appeal.
This phase is a crucial transition from the trial court to the appellate process. But post-trial procedures of this sort involve tight deadlines and tricky procedures.
It often makes sense for trial counsel to retain the lead role at this stage, because it can be difficult for appellate counsel new to the case to get fully up to speed in the limited time available — and because the action is still taking place in the trial court, not at the Court of Appeal. However, an appellate specialist can provide valuable input on both procedure and substance.
Another important aspect of the transition phase concerns the actual launching of an appeal. As noted in the section of this Web site dealing with the appeals process, the filing of a notice of appeal and the designation of the record on appeal take place at the trial court, not at the Court of Appeal.
The way John Derrick prefers to operate is to collaborate and consult with trial counsel during this entire transition phase but — generally — not to become an attorney of record at the trial court. However, he can prepare the notice of appeal and the notice designating the record on appeal, even if those are not filed in his name. After the appeal has been filed, and the case transfers to the Court of Appeal, he substitutes or associates in there as an attorney of record. That generally happens about two weeks after the filing of the notice of appeal (by which time a case number has been issued and the matter appears on the Court of Appeal docket). From that point on, he generally takes the sole or lead role in handling the appeal. The transition is complete.
This is particularly important if you lost in the trial court, because there may at this stage still be things to be done there to help set you up for the strongest possible appeal. This applies especially where the case ended with a trial, as opposed to something like a motion for summary judgment or other pretrial dismissal.
In particular, post-trial motions provide a final opportunity to ensure that a proper record is made of issues that may be raised on appeal. And certain issues will be waived on appeal if they are not first addressed in a motion for a new trial. Moreover, there is always the possibility that the trial court will correct error without an appeal being necessary.
In the case of bench trials, there is also the need for a statement of decision — without which the losing party at trial can be at a disadvantage when the case goes on appeal.
This phase is a crucial transition from the trial court to the appellate process. But post-trial procedures of this sort involve tight deadlines and tricky procedures.
It often makes sense for trial counsel to retain the lead role at this stage, because it can be difficult for appellate counsel new to the case to get fully up to speed in the limited time available — and because the action is still taking place in the trial court, not at the Court of Appeal. However, an appellate specialist can provide valuable input on both procedure and substance.
Another important aspect of the transition phase concerns the actual launching of an appeal. As noted in the section of this Web site dealing with the appeals process, the filing of a notice of appeal and the designation of the record on appeal take place at the trial court, not at the Court of Appeal.
The way John Derrick prefers to operate is to collaborate and consult with trial counsel during this entire transition phase but — generally — not to become an attorney of record at the trial court. However, he can prepare the notice of appeal and the notice designating the record on appeal, even if those are not filed in his name. After the appeal has been filed, and the case transfers to the Court of Appeal, he substitutes or associates in there as an attorney of record. That generally happens about two weeks after the filing of the notice of appeal (by which time a case number has been issued and the matter appears on the Court of Appeal docket). From that point on, he generally takes the sole or lead role in handling the appeal. The transition is complete.