Anyone who wants to succeed in litigation.
About two-thirds of litigants in civil cases are unhappy with their outcomes, a study has shown. The skill and experience of trial counsel makes no difference.
What makes the difference is knowing what is most likely to work – both at trial and on appeal. An independent Appellate Specialist, working closely with trial counsel, will not only set your case up for success on a future appeal, but will also improve your odds of success without an appeal.
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.
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.
Studies have shown that nearly two-thirds of litigants in civil cases are dissatisfied with the outcome of their trial—and in many cases, an appellate attorney can work with you to change this outcome. As an extensively experienced California appellate law group, we have the expertise and know-how to help you through every step of the appeals process so you can get the case outcome you deserve.
Simply put, an appellate attorney is an attorney that will handle your case if you choose to pursue an appeal. While you will be working with a trial lawyer initially that will take your case before the Orange County judge and jury, if you received an unfavorable verdict, an appellate attorney will help you take your case to the next level—namely, the California state and federal appellate courts. Appellate attorneys aim to seek out issues with 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 do not have to 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 during your initial 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, they will determine if these two conditions have been met and if so, appeal your case to a higher court. A qualified appellate attorney must pay careful attention to detail, as they will need to be able to discern any errors, no matter how minor, and be able to correct them when seeking a new trial.
Once the final judgment in the case is decided, 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 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. An appellate lawyer will know the ins and outs of the appeals process, be able to counsel you on what grounds you have for appeal, and can ensure you do not miss any of the complicated and strict deadlines associated with filing your appeal to the higher California courts.
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 are they 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 they are attentively listening and asking questions to ensure they are giving your case the attention it deserves and that they will truly be a 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 officially hire your appellate lawyer to proceed with the appeal of your case, they will begin the preparation process. First, they will need to file and serve the notice of appeal and order the record of 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 appeals deadline, which is highly specific in California.
Presenting the case for an appeal of the judgment 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 on the case. It is also where the specific details of your appeal are outlined, so they will know if you are seeking for your conviction to be overturned, 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 to explain why the appeal should be granted. This is not a time for them to simply read off their opening brief—the oral argument should be extremely compelling, simple to understand, and concise. 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 opening brief and the oral argument have been presented, the court will provide a written decision either approving or denying the appeal. If the appeal is granted, you may receive a reduced sentence or an overturning of your conviction, in which case, your appellate lawyer’s work is done. If your appeal request was a retrial, you may consider keeping them on your legal counsel since they know the case intimately by this point.
If your appeal is denied, however, that is not the end of the road. The state of California will allow you and your appellate attorney to appeal the case again, either to the same court or to a higher one. They will need to file a Petition for Rehearing (when pursuing another appeal argument with the same court) or a Petition for Review (which will attempt to get the case in front of the California Supreme Court).
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 verdict. 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. While you can and should file for the appeal as quickly as possible, there are several guidelines regarding deadlines to know:
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 you immediately are not able to ask for any extension regarding these deadlines to file your notice of appeal, and if your appeal is late, it will be immediately dismissed. When you work with a qualified appellate law group, you can be certain that they can help you determine your deadline and file your notice of appeal before it is too late.
In general, your appeal will either be granted or denied by the appellate court after your attorney presents the oral argument. If your appeal is granted, you will be given the terms you requested in your appeal filing—either a reduced sentence, another trial, or overturning of your conviction.
If your appeal is denied, 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, or you can have them file a Petition for Review which will escalate the case to the California Supreme Court so your case can be reviewed by an even higher power.
As mentioned previously, an appellate lawyer is highly specialized in the specific details that make up cases and court rulings. The appeals process requires a keen eye for detail, impactful writing abilities, legal research, and effective presentation of an argument before a judge. When there are errors made at the initial trial, your appellate attorney will be able to highlight these in front of the appellate panel and will know how to appeal to the judges and clerks they will be dealing with.
It is also important that your appellate lawyer has a fresh perspective on the case and can present an objective eye to the details. They will be able to quickly determine which arguments will be most effective so they can focus their time and energy on honing in on the right details when presenting the case. When you hire an appellate attorney, the appellate court will see that you are taking the appeals litigation process seriously and give you the best chance of success in winning your 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 and vice versa. In general, trial lawyers are required to present details in a concrete, yet compelling way that captivates a jury and court, as they are who the trial is focused on convincing. With an appeal, however, the lawyer must focus directly on swaying the opinion of the judge, and must thus be skilled in subtle, detailed arguments that are likely to convey the importance of justice. Additionally, during appellate litigation, the approach will generally be totally different than it was at the trial—the appellate attorney is not simply reviewing the facts of the case in a different manner, and will instead benefit from a new and fresh perspective on the entire case. Your appellate attorney and trial lawyer can (and should) communicate, the only difference is that the addition of the appellate attorney’s expertise is being added to your case.
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 due fines. The Clerk will then 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, they will either grant or deny the request and alert your attorney to their verdict.
A writ is an unconventional court order issued when a lower court has decided to try a case out of its jurisdiction and the attorneys object and request a transfer of the case. In this event, the person seeking the writ will want to move quickly—if you object at trial and wait to appeal, it can waste unnecessary time and money, which is unnecessary if the court improperly took the case in the first place. Higher courts do not typically review decisions of a lower court until the final verdict is issued, but a writ can bring the case to their attention long before this. Writs are quite rare and are not issued lightly, but they are extremely important in ensuring that everyone receives a fair trial.
An amicus brief is a document that is filed in appellate court by a non-litigant with a stake in the subject, and contains additional information or arguments that the courts may want to consider to have a balanced view of the situation. 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. For cases that involve state laws, state courts have original jurisdiction—however, if federal laws are involved, federal courts will have the original jurisdiction on the case. Original jurisdiction is quite common in certain types of courts, like traffic courts, bankruptcy courts, or juvenile courts that deal with specific scenarios.
When a court receives an appeal from the court with original jurisdiction, the higher court will use appellate jurisdiction to review the decision. The appellate court does not hear the entire case, but they will review the relevant facts to determine if the appeal should be granted. They will then have the power to grant the appeal and nullify the original court’s final verdict.