Paul combines impressive credentials with a down-to-earth demeanor. He helps civil litigants understand the best way of attacking or defending a trial court decision. And he delivers results through persuasive appellate-brief writing and polished oral advocacy. Below are some questions and answers about the civil appellate process.
What is an appeal?
During the course of a lawsuit, the trial court makes various orders. Ultimately, the trial court typically makes a final judgment that decides the case in favor of one party and against the other. An appeal is the most common way that a party challenges unfavorable orders and judgment in a higher court. After the court of appeals receives written arguments (called briefs) and hears oral argument from the parties, it decides whether the trial court’s orders or judgment were mistaken and, if so, how they should be corrected.
Should I appeal?
The decision whether to appeal is the most important decision a party—and an appellate lawyer—make after a trial court renders judgment. On one hand, trial courts often make mistakes that adversely impact a party, including requiring the payment of a money judgment. An appeal enables a higher court to correct these mistakes and reverse these adverse impacts. On the other hand, an appeal requires time and money, including legal fees, payment of a bond, and interest if the appeal is unsuccessful. The conclusion to this cost-benefit analysis depends on the party's particular situation and the strength of the possible issues on appeal. An appellate lawyer, such as Paul, can help a party decide this crucial, preliminary decision.
If the litigant won in the trial court and is responding to an appeal filed by the other party, the responding party must still decide whether a cross-appeal is desirable.
Why should I hire a separate appellate lawyer?
Trials are not the same as appeals. When a lawsuit is before a trial court, a lawyer’s main task is to obtain the relevant facts and present them to the judge and/or jury in a persuasive manner. During an appeal, however, the focus shifts. The primary question on appeal is how the law applies to the facts as determined on the trial-court level. This critical difference means that trial lawyers need different skills than appellate lawyers. Whereas a trial lawyer must be a great fact investigator and persuasive storyteller, an appellate lawyer must excel at analytical thinking and cogent legal writing.
Moreover, an appellate lawyer provides a different perspective than a trial lawyer. The trial lawyer has often litigated a case for years, arguing with opposing counsel repeatedly over details that may or may not have an impact on the end result. This focus on the day-to-day fight means that trial lawyers, when thinking about an appeal, can lose the forest for the trees. By contrast, a skilled appellate attorney provides the top-down analysis needed to win on appeal.
Paul provides both the skills and the fresh perspective that lead to winning appellate briefs.
What are the steps to an appeal?
Notice of appeal
A party starts an appeal by filing a notice of appeal in the trial court. This document, although simple, plays a critical role in the appeals process. It is the party’s “ticket” to gain entry into the appeals court—without a timely notice of appeal, the appeals court has no power (i.e., jurisdiction) to review the appeal. The deadline for filing a notice of appeal depends on whether the case is a state-court or federal-court case. In either case, though, the deadlines can be tricky. So it’s important that a party contacts an appellate attorney as soon as possible.
The Record on Appeal
An appeals court bases its decision only on evidence that appears in the record on appeal. The record consists of two separate transcripts: the clerk’s transcript and the reporter’s transcript. The clerk’s transcript contains selected documents that were filed in the trial court, while the reporter’s transcript includes a collection of oral proceedings that were transcribed by the court reporter.
Briefs on Appeal
After the record on appeal is filed, the party filing the appeal (called the appellant) must file an opening brief. This brief lays out the framework for the appeal: it describes the issues on appeal (i.e., the alleged errors by the trial court), the history of the case in the trial court, the relevant facts determined at the trial level, and the arguments why the trial court’s alleged error should be corrected. The responding party then files a brief (typically the respondent’s or appellee’s brief) that argues why the contested trial-court decision were not mistakes or, in any event, do not dictate a different ultimate result. Finally, the appellant may file a reply brief that counters the responding brief.
Several months after the reply brief is submitted, the parties may argue in person before the three-judge appellate panel who will decide the case. The oral argument typically lasts about 30 minutes, which is spent in a back-and-forth between the judges and counsel clarifying points made in the three briefs.
The three-judge panel will publish its decision on the appeal typically after several months. The decision will explain whether each of the trial court’s alleged mistakes was in fact erroneous and, if so, how it should be corrected. Some possible outcomes include leaving the trial court’s judgment intact (which is the most common result), returning the case to the trial court for further proceedings, or dismissing the case altogether.
A party dissatisfied with the decision can request, in a brief, for the appellate panel to reconsider its decision. If this request is denied, then the party can solicit the highest court, either the California or U.S. Supreme Court to review the case. But these courts have discretion over which cases they review, and only a very small portion of requests are accepted.
How long does it take?
Each step in an appeal, including compiling the record, submitting a brief, conducting oral argument, and obtaining a decision, takes months. So an appeal, from start to finish, can take up most of a year or longer.
How much does it cost?
The cost of bringing an appeal varies, depending on the size of the case and the issues being contested. Please consult with an appellate attorney, such as Paul, to discuss the particulars of your potential appeal.