FAQ

1 - What is an appellate specialist and why should I use one?
2 - How does an appeal work?
3 - What is an interlocutory writ?
4 - What standard of review does the appellate court use?
5 - If I lose my appeal, can I appeal again?

1. What is an appellate specialist and why should I use one?

An appellate specialist is an attorney concentrating on appeals and writs. Most attorneys—including attorneys engaged in trial work—have very limited experience with appeals. The procedures in courts of appeal are very different from those in trial courts, and there are special rules concerning the types of arguments that can be made in an appeal.

Trial attorneys are concerned with sifting through evidence and presenting a persuasive story to the fact-finder. Appellate work is very different because the story has already been told; the job of the appellate attorney is to work within the trial court record. Writing skills are even more important for appellate work than they are in trial-level work.

An appellate specialist can be very useful in bringing a fresh perspective to the case. After a long trial, a good trial attorney has advocated his or her client's position for so long that it may be difficult to present an objective account of the proceedings in the trial court to the court of appeal. An appellate attorney brings a detached perspective that will be closer to the perspective that the higher court will use when reviewing the case. An appellate attorney also brings experience regarding what types of arguments are most likely to succeed on appeal, as well as knowledge of the procedural rules that govern appeals.

The State Bar of California offers a program of specialization in appellate law. To receive a certification as an appellate specialist, an attorney must demonstrate that a large percentage of his or her practice is devoted to appellate work, must pass an 8-hour examination on appellate practice and procedure, must have argued a minimum of 15 appeals, must have filed dozens of briefs and must have taken a large number of continuing education courses in appellate practice and procedure.

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2. How does an appeal work?

All cases begin in trial court. If the parties cannot settle a lawsuit, it will eventually end in a judgment, perhaps as a result of a motion by one of the parties, by the judge dismissing the case, or by a jury verdict. An appellate specialist usually gets involved when a judgment has been (or is about to be) entered. At this point, the losing party can appeal his or her case to a higher court (the winning party may also appeal if he or she is dissatisfied with the way the trial court resolved an issue) and ask the higher court to correct any errors made in the trial court.

Usually, appeals begin by filing a notice of appeal in the trial court. It is extremely important to identify the date that a notice of appeal must be filed. The time for filing varies from court to court, so it is usually a good idea to contact an appellate specialist as soon as it appears that a judgment has been or will be entered against you. In most circumstances, you lose your right to appeal if you do not file a timely notice of appeal, so identifying the proper date and filing the proper papers is vital.

Once the appeal has been filed, the appealing party-- known as the appellant -- must identity the appellate record. The appellate record consists of the information from the trial that the appellant would like to present to the higher court. The other side—known variously as the appellee or the respondent—may also designate parts of the record for the appeal.

After the parties have designated the record for appeal, the clerk of the trial court and the court reporters will assemble that record. Once the record is complete, the appellant will file an opening brief—which is a discussion of the facts and law and an argument why the appellant believes the trial court made a mistake. The respondent or appellee will usually file a responding brief, and the appellant will file a closing, or reply brief.

After briefing is completed, the court of appeal will usually schedule oral argument. At oral argument, lawyers for each party have a chance to tell the court of appeal what they think was wrong (or right) about the trial proceedings. An oral argument is not like a trial. Oral arguments are typically limited to 10-30 minutes. Further, oral arguments are not always required and some courts may not allow them. There are no witnesses or juries. The judges of the court of appeal will ask questions of the lawyers but they will not take evidence.

Courts of appeal issue opinions after oral argument. The court of appeal may decide there was no error and affirm the judgment, or it may find some error and reverse. A reversal can mean that the lower court is directed to enter a new judgment in favor of the appellant, or the court of appeal may simply direct the trial court to hold a new trial or hearing.

3. What is an interlocutory writ?

In limited circumstances, a party may ask a court of appeal to intervene before a trial has reached its conclusion. Such procedures, usually called writs, are rare.

A writ is an order from a higher court to the trial court to modify a decision or order made during trial.

4. What standard of review does the appellate court use?

Appellate courts do not retry the case, nor do they listen to new evidence. They only consider the facts and evidence presented during the trial.

Appellate courts normally are required to give great weight to the factual findings of the trial court (or the jury). Appellate courts typically can only overturn findings of fact if the trial court came to a conclusion that no reasonable person would have reached. Further, the court of appeal court will only overturn the decision if the error was so prejudicial that there is a reasonable chance that the error changed the outcome of the trial.

The stronger arguments on appeal are attacks on the procedures the trial court used or arguments that the trial court wrongly interpreted the applicable law. These matters are typically reviewed de novo, meaning the higher court gives the trial court no deference. For example, courts of appeal review the lower court's interpretations of statutes and constitutions de novo.

5. If I lose my appeal, can I appeal again?

If the first appeal was in state court, then the second appeal would be made to the state supreme court. If the first appeal was in federal court, then the second appeal would be made to the United States Supreme Court.

With very limited exceptions, state and the federal supreme courts are not required to take a case. Requests for the highest courts to review an appeal are called petitions for certiorari or petitions for review. Such petitions should be well written to increase the chances of the higher court hearing the appeal.