Appeals and Writs

There are many different appellate courts in California. Unlimited jurisdiction California state courts civil judgments are appealed the California Court of Appeal. An unsuccessful litigant may thereafter appeal that ruling to the California Supreme Court, however, the California Supreme Court does not hear a majority of the cases it is asked to hear. Limited jurisdiction California state court civil judgments are appealed to the appellate division of the respective county’s superior court. In some limited cases those rulings may be appealed to the California Court of Appeal but the Court of Appeal need not hear the case. In federal court, cases are appealed to the Ninth Circuit Court of Appeals. Thereafter, they may be appealed to the United States Supreme Court.

There is often a common misperception that a case is reheard by an appellate court. In fact, an appellate court reviews the rulings of the trial court to determine whether a mistake is made. Generally speaking, no new evidence or testimony is brought before an appellate court, it simply reviews the record from the lower court as well as the legal arguments that are presented to it in the form of “briefs” and oral argument. It is very important to make sure there is an adequate record of the proceedings in the trial court. All too often we will come across records where counsel agreed that a court reporter was not necessary during various parts of a trial. When this happens, it makes it very difficult, from an appellate perspective, to ascertain whether there is an appellate issue that arose during that phase of trial. Similarly, in many cases, if an attorney does not properly and timely object to evidence, the right to appeal can be waived.

The appellate process starts immediately after trial. The appellant will file a Notice of Appeal which simply advices the court that an appeal is under way. In some situations, both parties may be dissatisfied with some aspect of the ruling and there may be “cross-appeals”. After the Notice of Appeal is filed, appellate counsel must go through the trial record and decide which documents and transcripts must be sent to the appellate court to review as part of the appeal.

Once the appellate record is complete and sent to the appellate court a briefing scheduled can be determined. The appellant files an “Opening Brief.” Thereafter, the successful party in court, the “respondent,” files their Respondent’s Brief. The appellant may then file a last “Reply Brief.”

The appellate process can move slowly and it often can take a year or more for an appeal to be complete. Many appellate courts have mediation programs designed to assist litigants in settling cases even after trial. Alternatively, the parties may voluntarily agree to post-trial mediation.

After a case is fully briefed it can either be scheduled for oral argument or the parties may waive oral argument and agree to submit the case to the court based solely on their briefs. In state court appeals are heard by appellate panels of three appellate justices. One justice will write the opinion for the court and the other two can either “concur” or write their own separate opinion. If a justice does not agree with the ruling of the majority of justices they may write a “dissent.” Sometimes, if the court feels that an important or precedential issue is being decided they will order that the opinion be published which means it can then be cited by other attorneys and courts as legal precedent. Most opinions, however, are not published.