Studies have shown that nearly two-thirds of litigants in civil cases are dissatisfied with the outcome of their trial. Unsuccessful outcomes can come at any stage of the case, including on a demurrer or motion to dismiss, on a motion for summary judgment, after trial, or after post-trial motions.
Fortunately, in many cases, an appellate attorney can help prevent or change unsuccessful outcomes. TVA’s appellate specialists help their clients develop appellate strategies to maximize the chances of getting a just outcome.
Timothy Kowal and the Appellate Specialists at
Thomas Vogele & Associates work with:
~Trial Attorneys ~Trustees/Fiduciaries
~Corporations ~Business Owners ~Developers
~Lenders & Borrowers ~Individuals
If your case involves high-stakes, multi-party, or protracted civil litigation, it is critical to talk to an Appellate Specialist immediately.
An appellate attorney is an attorney that will handle the case if the client pursues an appeal. In the usual case, the client works with a trial lawyer while in the trial court, who takes the case before the judge and jury in the Superior Court of Los Angeles or Orange County or other counties, or in the United States federal district court. If the trial results in an unfavorable verdict and judgment, an appellate attorney will help the client’s case to the next level—either the California Court of Appeal or the United States Circuit Court of Appeals.
Appellate attorneys identify potential errors in the original trial proceedings, such as unfair trial practices or legal issues with the case, and use these discrepancies to change the outcome of the verdict.
Contrary to popular belief, you should not wait until you win or lose your case to seek the counsel of an appellate attorney. In fact, you can consult with an appellate attorney early in the litigation process so you can better understand the next steps should you need to appeal your judgment once you get further along in the process.
In most cases, determining if your case will qualify for an appeal will depend on two main factors:
When you work with an appellate attorney, the attorney will determine if these two conditions have been met and if so, appeal your case to a higher court. A qualified appellate attorney carefully reviews the factual and procedural record to determine the existence and extent of any errors. When appellate counsel is involved in the trial, appellate counsel can help identify and correct errors before they result in prejudice to the client. An appellate attorney will also advise whether the errors should be raised in a motion for a new trial, or in a motion to vacate the judgment. In the case of a bench trial, an appellate attorney will help ensure the critical statement of decision is timely requested before a judgment is entered, and make all necessary objections to a defective or insufficient tentative decision or proposed statement of decision.
What orders to appeal, and when to appeal, can be extremely difficult questions to answer correctly. While California Code of Civil Procedure section 904.1 lists the types of orders that are appealable, it is not an exhaustive list. Making matters more difficult, trial courts often enter orders that are not appealable at first glance, and are only appealable by analyzing the contents and effect of the order.
Once you have determined the court has entered an appealable order, it is possible for the losing party in the civil or criminal lawsuit to appeal the decision. It is important to note, however, that in a criminal lawsuit generally the prosecution may not appeal a verdict in favor of the defendant—i.e. a “not guilty” verdict cannot be appealed.
While anyone has the right to appeal their court decision themselves, it is not recommended to do so without an experienced appellate attorney on your side. In some cases, a notice of appeal that does not correctly identify the type of order appealed from has been grounds for dismissing the appeal. In other cases, a notice of appeal filed too early has been grounds for dismissing the appeal. The Court of Appeal may decide to review non-appealable orders as an appealable order, or as a writ petition. But the Court of Appeal might also decide not to do so. In such a case, an appellate attorney will file both an appeal and a writ petition.
An appellate lawyer will counsel the client on the available grounds for an appeal or writ petition, and can help ensure compliance with all of the complicated and strict deadlines associated with the appeal.
Just because you lose your court case does not mean you should lose hope. If you are unhappy with the final judgment, you can enlist the help of an appellate attorney to help you file for an appeal. They will consult with you to determine if you have a case, file the notice of appeal to the court, submit a written brief, and present an oral argument on your behalf. While you may be able to manage some of these elements yourself, the appellate lawyer is a priceless resource to counsel you on exactly what your options are and what your winning strategy should be to get the outcome you are seeking from the court.
In the initial consultation with your appellate lawyer, you will explain why you believe the judgment on your case was incorrect and what occurred during your trial. Think of this as a two-way meeting with your potential appellate attorney—not only is the appellate attorney evaluating if your case is one they would like to take on, but you are also evaluating if they are the best lawyer available to serve your needs. Make sure the appellate attorney is listening and asking questions to ensure your case is getting the attention it deserves, and that the attorney will be a valuable resource for you during the appeals process. Appellate attorneys must be extremely motivated and highly detail-oriented, so making sure you choose the right one will help the remainder of the process go much more smoothly. If you decide to continue working with an attorney after the initial consultation, things will process to step two.
After you hire your appellate lawyer and decide to file an appeal in your case, the record preparation process begins. First, the appellate attorney will need to file and serve the notice of appeal and order the record on appeal, so the court and the other party are made aware that you are appealing the case. This will ensure you do not miss the appellate deadline, which is very strict in California as courts consider it to be a jurisdictional deadline.
Analyzing the appealability of the order, and the notice of appeal, are crucial to your appeal. Close to 5% of appeals are dismissed for technical reasons like nonappealability or untimeliness.
The designation of record may be filed with the notice of appeal, or within 10 days of filing the notice of appeal. The designation of record is also crucial to the appeal’s success. Any argument the appellate attorney makes in the briefs and at oral argument must be supported in the record. If the necessary support is not identified in the Designation of Record filed at the outset of the case, the arguments may be deemed waived, forfeited, or simply unsupported. Failing to pay close attention to the designation of record can render an appeal moribund.
Presenting the case for an appeal of the judgment or order is where the bulk of the work will take place on your case. Your lawyer must thoroughly research your case and all the surrounding legal implications to look for holes and flaws in the judgment. Then they must work to present a swaying argument to have the appeal be granted. There are two main elements to the appellate litigation part of the process:
The Opening Brief
The opening brief is a critical piece of the appeals process, as it explains to your trial attorney, prosecutor, the jury, and the judge what legal errors were committed and why these resulted in an incorrect judgment in the case. It is also where the specific details of your appeal are outlined, so the court will know if you are asking for a damages award to be reduced, or for a conviction to be overturned, or to be granted a new trial, or to receive a reduced sentence. Presenting the opening brief effectively is key to starting your appeals process off in the best way possible.
The Oral Argument
In the oral argument, your appellate attorney will appeal directly to the judges in the California Court of Appeal or the Ninth Circuit to explain why the appeal should result in a reversal of the judgment. This is not simply a summary of the written briefs. Oral arguments on appeal must anticipate the appellate justices’ questions and concerns. Preparation for oral argument may consume days or even weeks of attorney time in an effort to bring the case to life in a way that written briefs simply cannot. Your appeals lawyer should attempt to build a rapport with the court and answer any questions to make it clear why the appeal should ultimately be granted.
Once the briefs and the oral argument have been submitted, the court will provide a written decision within 90 days either reversing the judgment or affirming it. If the appeal is successful, you may receive a reduction in the judgment or a different judgment, or a reduced sentence, or an overturning of your conviction, in which case, your appellate lawyer’s work is largely done. If the Court of Appeal reverses the judgment and remands for a retrial, you will need to consult trial counsel.
It may be wise to keep your appellate counsel on board to help handle post-appellate matters. These include seeking costs and fees on appeal, recovering moneys collected during efforts to enforce the judgment during appeal, exonerating appellate bonds, and briefing the trial court on the Court of Appeal’s instructions to the trial court and the aspects of the decision that are binding as law of the case.
If your appeal is unsuccessful and the judgment is affirmed, other relief may still be available. In the California state Court of Appeal, in some circumstances you may file a petition for rehearing. You may also file a petition for review to the California Supreme Court, asking the high court to review and, hopefully, reverse the Court of Appeal’s decision.
Because of the strict deadlines and restrictions placed upon the appeals process, it is advised to seek legal assistance right away if you would like to appeal your judgment or order. In California, you are able to file a notice of appeal as soon as the judgment is signed by the judge and stamped as “filed” by the court clerk, also known as the entry of judgement. In some cases, an order may be filed before the entry of a judgment; be sure to consult an appellate specialist in such cases.
While you can and should file for the appeal as quickly as possible, there are several deadlines to understand:
For Civil Cases That Involve $25,000 or Less in Judgments
Once you receive a notification that the judgment is being entered, you are required to file your appeal notice on or before whichever is earlier:
For Civil Cases That Involve Over $25,000 in Judgments
Once you receive a notification that the judgment is being entered, you are required to file your appeal notice on or before whichever is earlier:
It is important to note that, except in the case of extensions upon filing certain post-trial motions (motions for new trial, JNOV, or reconsideration), no extensions of the deadlines to file a notice of appeal are available. If your appeal is late, it will be automatically dismissed. Work with an appellate specialist helps ensure your appeal is filed on time.
In general, your appeal will result in either affirmance or reversal by the appellate court after your attorney presents the oral argument. If your appeal results in reversal, the Court of Appeal will vacate the judgment and send it back for retrial. In some cases, the Court of Appeal may order that the judgment award be reduced, a reduced sentence, overturning of a conviction, or order a different remedy.
If your appeal is unsuccessful and results in affirmance of the judgment, that does not mean that there is no hope. You can work with your appellate attorney to continue to fight for your desired outcome. You can do this by either having them file a Petition for Rehearing to present a revised appeal argument to the original court, if you can convince a majority of the three-justice panel that there is a substantial error in the decision. An appellate attorney may also file a Petition for Review, which asks the California Supreme Court to consider reviewing your case.
Some clients opt to let their trial attorney handle their appeal. After all, the trial attorney knows the case, and was there at every moment of the trial. So having trial counsel handle the appeal certainly presents some benefits.
But there are several reasons why every client should consider hiring appellate counsel, either to consult with trial counsel, or to handle the appeal.
It may seem like common sense to retain a trial lawyer to handle your appeal, but in many cases, you will find that the strengths of a trial lawyer are different from the strengths of an appellate lawyer. In general, trial lawyers are required to present details in a concrete, yet compelling way that captivates a jury and court. On appeal, however, the lawyer must focus directly on swaying the opinion of an appellate judge who has had the luxury of spending large amounts of time with the body of law at issue. For this reason, the appellate attorney must spend substantial more time studying the applicable law in presenting an argument in the Court of Appeal than in the trial court.
Additionally, during appellate litigation, the approach will generally be much different than it was at the trial. An appellate attorney is not simply reviewing the facts of the case in a different manner. Instead, an appellate attorney, like the appellate justices, will only ever see the trial as it exists on the written record that was made from it: the reporter’s transcript, and the written evidence presented at the trial. Because the appellate attorney will be looking at the trial the same way the Court of Appeal will be, the appellate attorney is in a better position to advise the client on the merits of the appeal.
Once your appellate lawyer files your notice of appeal of the court’s final decision, it is assigned a docket number by the Court of Appeals Clerk’s Office. Your attorney will then handle any forms and paperwork necessary to continue with the appeal, and the Clerk will make you aware of any problems, such as fees due. While the briefing schedule is set by rule, the Clerk may issue a briefing schedule, which will let you and your attorney know when they will make their written and oral arguments to the Court. Once the Court has a chance to review the appeal, it will either affirm or reverse the judgment.
The Court of Appeal has within its jurisdiction to rule on petitions for writs of mandate (or mandamus) or prohibition (the distinction between a writ of mandate and a writ of prohibition is becoming less commonly recognized.) While the right to appeal is defined by statute and applies only to a narrow set of orders and judgments, the Court of Appeal may review any act of the trial court pursuant to a writ of mandate.
As a rule, the person seeking the writ needs to move quickly. As most orders could await appellate review in the normal course by waiting for a final judgment, by filing a writ petition the party is essentially telling the Court of Appeal the matter is urgent. So if you do not treat the matter with utmost urgency, it is unlikely the Court of Appeal will be inclined to treat it with urgency, either.
Writ petitions are very rarely granted. Before the Court of Appeal will consider a matter on writ review, the petitioner must establish that the trial court’s order will cause immediate and irreparable harm.
An amicus brief is a document that is filed in appellate court by a non-litigant with an interest in the subject, and contains additional information or arguments that the courts may want to consider to have an additional perspective on the applicable law. The Supreme Court states that the amicus brief should contain relevant matters not dealt with by the currently litigating parties which may be of assistance in the case.
If a court has original jurisdiction, that means they are given the right to hear the case initially. If a court has appellate jurisdiction, that means the court may only hear the case by way of reviewing the decision of a lower court.
For example, most cases begin in trial court. The Court of Appeal has appellate jurisdiction of the judgments of the trial court. The state Constitution gives the Supreme Court the authority to review decisions of the state Courts of Appeal. (Cal. Const., art. VI, § 12.) For some kinds of cases, however, the Court of Appeal or Supreme Court may have original jurisdiction. For example, the Supreme Court has original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition, and in habeas corpus proceedings. (Cal. Const., art. VI, § 10.)
Like the California Supreme Court, the Courts of Appeal have original jurisdiction in habeas corpus, mandamus, certiorari, and prohibition proceedings. (Cal. Const., art. VI, § 10.)
Moreover, in death penalty cases, the Constitution directs review by the high court. (Cal. Const., art. VI, § 11.) This means these cases are automatically appealed directly from the trial court to the Supreme Court, skipping the Court of Appeal. (Pen. Code, § 1239(b).)
Many Appellate Specialists handle appeals exclusively, and rarely set foot inside a trial court. Our approach is different. An appeal is usually won or lost before it gets to the appellate court: raising arguments to be used on appeal; adding missing evidence to the record; and giving the trial court the chance to fix its errors are all necessary to succeed on appeal.
This is the most effective, challenging, and interesting part of any appeal. We know of no other firm with the same unique approach and skill set.