The Appellate Process Frequently Asked Questions

What is an appeal?

An appeal is when a person loses a case in the trial court and asks a higher court to review the final decision to determine if any errors were made that affected the outcome of the case. In a civil case, whether the losing party is the plaintiff or defendant, that party may appeal. In a criminal case, if a defendant is acquitted, the prosecutor may not appeal.

How does the appeals process work?

The appellate specialist reviews the trial court record, including written motions, transcripts of hearings on the motions, and trial transcripts, in order to identify errors that appear to have been made. As part of the appellate procedure, the attorney then prepares a written Appellant’s Brief explaining to the court how the trial court erred and why the decision should be reversed. After the brief is filed with the reviewing court, counsel for the opposing party files a Respondent’s Brief arguing why that party believes the trial court was correct. No new evidence is presented, and the issues are limited to ones raised in the trial court. The reviewing court may or may not schedule an oral argument for the attorneys to present their case to the court and answer questions. If an oral argument is scheduled, only the attorneys are required to attend.

How long do you have to file a notice of appeal after a court decision is announced?

A Notice of Appeal must be filed within 60 days of the judgment. A Notice of Appeal from a misdemeanor conviction must be filed within 30 days of judgment. These deadlines are jurisdictional. If the notice is not filed in a timely manner, the party hoping to appeal loses the opportunity, and there can be no appeal.

What happens after the notice of appeal is filed?

The appellate specialist designates the portions of the record that will be used for the appeal. This may include all motion hearings or only those the attorney deems are relevant. It generally includes all trial transcripts. The appellate court will establish deadlines for filing of briefs, and the schedule may depend on the complexity of the case, how long the trial was, the length of the trial transcripts, and how many pretrial and trial motions were filed.

What happens to the trial court judgment during the appeals process?

The trial court judgment is enforced unless the attorney asks for a “stay.” A stay means it will not be enforced during the appellate process. Whether the trial court is inclined to issue a stay depends on the nature of the case. If the trial court refuses to issue a stay, the order denying the stay may be appealed.

Can new evidence be used in an appeal?

No. On a direct appeal from the trial court decision, the purpose of the reviewing court is only to determine if the trial court made errors in its decisions. The appeals court does not consider any new evidence.

How long does the appeals process take?

It depends on the complexity of the case. Civil appeals are generally decided within 90 days of oral argument. Criminal appeals may take longer. For a felony conviction, it is not uncommon for it to take up to a year or more from the time the Notice of Appeal is filed until the reviewing court issues its final decision.

How do I determine if I am eligible for an appeal?

Almost all criminal defendants who have been convicted of a felony are eligible to appeal a final conviction and sentencing. Parties to a civil case may appeal a final judgment with which they disagree. There are exceptions to these rules. The best approach is to consult with an appellate specialist who will review the facts of your case and determine if you are eligible to appeal according to the state or federal rules of appellate law.

What types of decisions are appealable?

A final order of a trial court is appealable. For a criminal case, this is when the court enters the final judgment at the conclusion of sentencing. For a civil case, it is when the trial court enters a final judgment.

Will oral arguments be presented, or will only written documents be considered?

The state or federal appellate court determines whether or not an oral argument will be presented. The appellate specialist may request oral argument, but that does not mean the court will grant the request. There are times when the court makes its decision based only on the written briefs filed by each party.

What are the potential outcomes of an appeal?

There are several potential outcomes. In a criminal case, the appellate court may, on rare occasions, reverse the conviction and order that no new trial can be taken and the defendant is free. The court may also order a new trial. It is possible for the court to find that an error was made, but it was harmless and did not affect the conviction, so the conviction will be upheld despite the error. In a civil case, the court may reduce the amount of a judgment, order a new trial or uphold the decision of the trial court.

What can I do if I disagree with the decision of the appeals panel?

You may petition for a rehearing. Depending on the issues that were raised and denied, you may file a petition for review in the California Supreme Court. This is discretionary and the court may or may not grant your petition and allow you to present your case to it. If the death penalty is imposed, the appeal skips the intermediate appellate court and goes directly to the California Supreme Court.

What is the appellate court structure in California?

In California, there are six appellate districts and some districts have several divisions. The appellate court that will hear your appeal depends on the geographical area of the trial court that entered the final judgment in your case.

What are the different types of appeals?

Appeals may be made from final judgments in both civil and criminal cases.

Is an attorney necessary to appeal my case?

Although an attorney is not necessary, even the self-help section of the California Appellate Courts recommends that, due to the complexity of the appellate procedure, appellants consult an appellate attorney who is familiar with the nuances of appellate law.

What are the benefits of hiring an appellate lawyer as opposed to the lawyer who handled my original case?

A trial court lawyer has different skills than an appellate lawyer. Appeals depend on research and writing briefs to the state or federal court. An appellate specialist will review the documents from the file court to see what mistakes may have been made by the trial attorney and possible erroneous rulings by the trial judge. Trial attorneys may lose his or her objectivity when reviewing their own work.

What is an Appellate Lawyer?

This is an attorney who is dedicated only to working on appeals. The California Bar Association has a credentialing process to recognize certified appellate specialists. There are only 290 certified appellate specialists in the entire state of California.

What is a brief?

A brief is a written document filed with the appellate court pointing out what errors were made and presenting the legal authority that supports the argument. The opposing party’s brief attempts to show the court that the appellant is wrong and the opposing party is correct.

What is a cross-appeal?

The non-appealing party may file a cross-appeal if there is a lower court ruling the party disagrees with. This is not the same as just arguing that the final judgment should be upheld.

Can the court dismiss my appeal?

If you miss a filing deadline established by the appellate court, your appeal may be dismissed.

What happens if I win my appeal?

It all depends on the specific decision issued by the court relevant to the issues that were raised and the outcome that was requested.