Phase Eleven: Appeal
Any lawsuit prosecuted in California Superior Court can be appealed to the California Court of Appeal. However, the “right” to appeal is tempered with the requirement that there must be valid grounds for such action. A clearly frivolous appeal can result in adverse consequences for the appellant.
An appeal is not another chance to re-argue the case. An appeal has a limited scope of inquiry. The appellate court will never re-weigh conflicting evidence and decide the case differently on that basis. Where there has been a factual dispute with evidence on both sides, the appellate court will uphold the result.
A common basis for appeal is the argument that the court made a legal error; that is, the judge used the wrong legal standard, instructed the jury incorrectly, or made an incorrect legal determination with regard to evidentiary objections or the like. Even if you are able to prove to the appellate court that there was an error, the result is not changed unless the appellate court also determines that without the error the result would have been different.
Statistics vary, but in general, it should be expected that no more than around 20% of all cases that are appealed result in a changed outcome. An appeal is an uphill battle. Without effective representation on appeal, the chances of success are even less.
An appeal is handled very differently from trial. Generally, no new evidence or legal argument can be introduced that was not introduced at trial. The appeal starts with the filing of a Notice of Appeal, which must be filed within strict deadlines, or the matter is forever lost. The appealing party must designate “the record” consisting of all the documents in the Superior Court file that the party believes will be needed for appellate court review, along with any Reporters’ Transcripts of important hearings or trial in the matter.
Once the record on appeal is compiled, which can take a significant period of time as it requires work by very busy Superior Court personnel and Court Reporters, a briefing schedule is set. Appellant gets an Opening Brief. The other side, the “Respondent,” gets a Respondent’s Brief. The Appellant has the option of filing a Reply Brief. The matter is then set for oral argument by the appellate court.
Appellate court oral argument is relatively short – the longest possible time available is 30 minutes per side, but often is it far less than that. Three justices hear oral argument, which is often interrupted by questions from the bench. After oral argument is completed, an opinion is usually issued within 90 days. The opinion is always a written discussion of the issues. Sometimes they are designated to be a published decision, meaning it goes forever into the law books to be used as reference for all other persons. More often, the opinion is designated “Not for Publication” meaning it cannot be used by others.
The party that loses on appeal has the right to ask the California Supreme Court to hear the case. However, the Supreme Court is not required to take the case. Unless certain circumstances exist, the Supreme Court will not take the case, and the matter will be over, unless the appellate court ordered more proceedings at the trial court.
