Appellate Practice 101

The fundamentals of appellate procedure

2015 December

The luckiest of trial lawyers never have to deal with an appeal. Those who do sometimes handle their appeals on their own; others hire appellate specialists. Whether you have managed to dodge all appeals, handle your appeals yourself or farm your appeals out, it’s good to have a basic understanding of the appeal process. This article will provide you with a general outline of the procedural processes, with some tips and insights on certain issues.

Like most procedural and substantive areas of the law, there are basic, general procedural rules that are modified by a flurry of exceptions and traps. If you’re unsure about anything, go to a trusted appellate practice guide, like Rutter’s Civil Appeals and Writs or the CEB’s Civil Writs and Appeals. Don’t be a gunslinger and think you can just wing it. You can’t.

What the appellate court does – and doesn’t do

Most lawyers realize that an appeal is not a “retrial,” i.e., you don’t get a “do-over.” But most clients do not understand that concept and whether you’re handling the appeal yourself or hiring an appellate attorney, you’re going to need to explain to your client that the appellate court simply reviews the trial court’s legal rulings, not the factual conclusions reached by the trier of fact. The most common misconception is that new evidence can be submitted on appeal, new witnesses can be called and new documents can be proffered. Not so. The appellate court is limited to considering the evidence admitted in the trial court and it will often take several conversations to get your client to understand the difference.

Do you have an appealable order or judgment?

Most of the time, it’s easy to tell if you have the basis for an appeal: There is a judgment, either after trial or as the result of a summary judgment motion. The list of things that are appealable, and therefore must be appealed, appears at Section 904.1 of the Code of Civil Procedure. But there are more than a few quirks to be aware of.

For example, there is often confusion about demurrers. An order sustaining a demurrer without leave to amend is not appealable. Rather, you have to wait for the order dismissing the action as the result of the sustaining of the demurrer without leave to amend. To make it extra confusing, defense counsel sometimes drafts an order that combines the two (i.e., the order sustains the demurrer without leave to amend and dismisses the action), so you have to be vigilant in assessing what the order actually does.

Similarly, an order granting summary judgment is not appealable; you have to wait for the actual judgment to be signed and filed. Other orders are directly appealable, e.g., orders (1) granting a motion to quash service, (2) granting a stay for forum nonconveniens, (3) granting a motion for new trial or denying a JNOV, (4) granting or denying an injunction, (5) imposing sanctions against an attorney in excess of $5,000, or (6) granting or denying an anti-SLAPP motion.

There are also a couple of other quirky situations that don’t really make a lot of sense, but are nonetheless the law. For example, if the defendant obtains a judgment against your client, the standard costs recoverable pursuant to Code of Civil Procedure sections 1032 and 1033.5 are encompassed within the appeal from the underlying judgment, even if the costs issues are not resolved until after the judgment itself has been entered. But if the costs requested include expert and other costs allowable under Code of Civil Procedure section 998, that order must be separately appealed and the appeal from the judgment will not include an appeal from that order. The same is true with respect to an award of discretionary attorney fees.

If you have an interim order that is not itself appealable, but you don’t want to wait until the end of the case to get appellate review, then you have to seek review by way of a petition for writ of mandate or prohibition – which the appellate court is not obliged to consider; those petitions are most often summarily denied. Writ petition procedures are beyond the scope of this article, but are covered in the recommended treatises.

Notice of appeal

Once you know you have an appealable judgment or order, you need to understand the timing for filing the notice of appeal. This is one of the trickiest – and deadliest – areas of appellate practice. It’s deadly because if you miss the time for filing the notice of appeal, it’s jurisdictional. That means that the appellate court does not have jurisdiction to hear the appeal and the appeal will be dismissed without consideration of the substantive issues.

• Timing

The rules to be aware of are Rules 8.104 and 8.108, which detail the timing requirements. The timing for filing of the notice of appeal seems pretty straightforward: You must file your notice of appeal within 180 days of the actual entry of the judgment or order at issue or within 60 days of the service (not the receipt) of a notice of entry of the judgment or order, whichever is less. Seems pretty simple, right? Not so much. The problem arises when you’re trying to determine what a notice of entry of judgment is. If either a party or the clerk serves a document entitled “Notice of Entry of Judgment” with a proof of service, that triggers the 60-day rule. But even if all that gets served is a conformed copy of the order or judgment, with a proof of service, that also triggers the time for the notice of appeal. So don’t be fooled: If the clerk or the defendant sends you nothing more than a conformed copy of the judgment, with a proof of service, your 60 days starts running.

There are certain situations that extend the time for filing a notice of appeal, e.g., the filing of a motion for new trial. But your best bet is to always file within 60 days of the actual entry of the order or judgment – even if no notice of entry is sent – because then you are always going to be timely.

• Form

The form of the notice of appeal is very simple: You need only identify that you are appealing from a specific judgment or order and you must sign the notice of appeal. (Cal. Rules of Court, rule 8.100.) Any interim, non-appealable orders rendered before the final judgment or appealable order are automatically included and you do not need to specify them.

Also, the notice of appeal need not be signed by the counsel of record in the trial court; any attorney can sign the notice of appeal, but that attorney then becomes counsel of record on the appeal. (Seeley v. Seymour (1987) 190 Cal.App.3d 844, 853.)

There is an optional Judicial Council form for the notice of appeal. (See www.courts.ca.gov.)

• Filing

Your notice of appeal is filed with the Superior Court, not the appellate court. You must also include the requisite filing fees, which are currently (as of October 2015) $775, payable to the Clerk of the Court of Appeal and $100 payable to the Clerk of the Superior Court. If you submit your notice of appeal for filing without the fees, the clerk is required to accept the document for filing, and will send you a notice of default for payment of the fees, setting a deadline by which the fees must be submitted.

Designation of the record

Within ten days of the filing of the notice of appeal, you must file your designation of the record, again with the Superior Court clerk. (CRC 8.121.) Actually, the designation of the record can be included as part of your notice of appeal document, but be sure to set forth in the caption that it is both a notice of appeal and a notice of designation of the record. There is also an optional Judicial Council form for the record designation.

Your obligation on appeal is to provide the appellate court with an adequate trial court record. That usually means all the relevant documents contained in the Superior Court file (i.e., the clerk’s transcript), as well as all relevant transcripts of any reported proceedings (i.e., the reporter’s transcript). Although it is possible to later augment the record if you discover that you inadvertently left something out, it’s best to be thorough in identifying the correct materials in your original designation.

• Clerk’s transcript or appendix

You have two options for providing the appellate court with the documents from the Superior Court file. You can either: (1) Designate a clerk’s transcript or (2) Indicate that you will be providing an appendix.

With the clerk’s transcript, you must identify each document, by title, from the Superior Court file, along with its filing date, that you want included. The Superior Court clerk will then gather the designated documents, arrange them in chronological order, provide both chronological and alphabetical tables of contents, and bind the documents into volumes of no more than 300 pages each. The clerk will then certify the transcripts to the appellate court. You will be given notice of the cost of the transcript and must pay that cost before the Superior Court will compile the transcript.

The downside of having the clerk compile the transcript is that it is a very time-consuming process when you are just filing your notice of appeal to identify each document and make sure that you designate what you need, but only what you need. If you’ve left something out that you discover you need once you start drafting your brief, you’ll have to move the appellate court to augment the record. If you include unnecessary or irrelevant materials, you will annoy the appellate court.

The other alternative is to provide an appendix. This looks just like the transcript complied by the clerk, but you do it yourself and it is submitted to the appellate court with your brief. This is also a time-consuming process but has the advantage of assuring that you have everything you need and nothing you don’t since you compile the appendix in conjunction with writing your brief.

• Reporter’s transcript (CRC 8.130)

If there has been a hearing or hearings on the motion or trial proceedings that are relevant to the issues on appeal, you must also designate which reporters’ transcripts you want the appellate court to review. When appealing from a judgment after trial, the reporters’ transcripts will be essential because that is the evidence upon which you must rely for making your legal arguments; without it the appellate court cannot reach a decision.

When the appeal arises out of a law-and-motion or post-trial hearing, the reporter’s transcript is less essential, primarily because the parties’ arguments or the judge’s analysis is often irrelevant. However, it is always best to request it anyway; the determination of whether an issue was raised in the trial court may depend on the arguments at the hearing. Alternatively, the judge’s thought process might reveal a basis for error. So it’s always best to request the transcript.

In designating the reporter’s transcript, you must identify each date requested, the name of the reporter (who will be identified on the court’s minute order for the date of the hearing), the subject matter of the hearing (i.e., trial voir dire, motions in limine, trial witnesses, post-trial motions, what law-and-motion hearing, etc.), whether the hearing was three hours or less or a full day and whether the hearing has been previously transcribed.

When filing your designation of the record, you must also submit a $50 processing fee to the Superior Court clerk and a deposit for the transcription costs. Alternatively, you can deal directly with the individual reporter(s), pay them directly and obtain waivers from them that you then submit with the designation.

If you pay the deposit, you must submit those fees with the designation. They are calculated as follows:

• For each hearing of three hours or less, you must submit $180 if the hearing has not previously been transcribed or $90 if it has; and/or
• For each hearing of more than three hours, you must submit $360 if the hearing has not previously been transcribed or $180 if it has.

Thus, if you’ve already ordered daily transcripts throughout the trial or ordered the transcript of a hearing, you only need to submit the smaller amount as the deposit.

Initial documents and electronic filing

Within ten days of the filing of the notice of appeal, you are also required to file with the appellate court a Civil Case Information Statement and a Certificate of Interested Parties.

• Initial documents

The Civil Case Information Statement is a Judicial Council form. The form asks for basic information about the case and gives the appellate court an early “first look” at the case in order to assess whether the appeal is from an appealable order or judgment, whether it is timely, whether there are any prior or concurrent related appeals involved and who is the counsel for each party. You must also attach a copy of the judgment or order at issue.

The Certificate of Interested Parties identifies your client and discloses whether any other person or entity has an interest in the case. For example, if the party is a partnership or corporation, the identity of the partners or shareholders must be disclosed. The purpose is so that the appellate court can conduct its own conflict check to make sure that the justices do not have a disqualifying relationship with any party.

• Electronic filing

Electronic filing is now mandatory in most districts. The requirements vary and are ever-changing. The various permutations are beyond the scope of this article, but if you go to the Website for your particular district (accessible from the Judicial Council Website at www.courts.ca.gov), you can get the information you need.

Briefing and extensions

Within 40 days after the clerk and/or reporters file the record, you will receive a notice from the appellate court that the record has been filed and that the opening brief (i.e., the appellant’s brief) must be filed within 40 days. There is also a 15-day “grace period” for filing the brief that comes in the form of a default letter from the clerk warning that if the brief is not filed within 15 days, the appeal will be dismissed. (CRC 8.220)

The time for filing the brief is also subject to an extension of up to 60 days by stipulation of the parties, which must be in writing and filed with the appellate court. Beyond that timeframe, it is possible to get further extensions by application to the appellate court, but only for good cause. The appellate courts are fairly liberal in granting one further extension but after that you may have problems.

The respondent’s brief is due within 30 days of the date of filing (not of receipt) of the opening brief, and is subject to the same “grace period” and rules regarding stipulated extensions. The only difference is that if the respondent’s brief is not timely filed after receipt of the default letter, the appellate court does not dismiss the appeal, but decides it on the basis of the opening brief.

A reply brief by the appellant is optional and is due 20 days after the filing (not the receipt) of the respondent’s brief and is, again, subject to stipulated extensions but there is no “grace period.”

A discussion of the details of the format of the briefs and a discussion of briefing tactics and techniques is also beyond the scope of this article, but are critical to a successful appeal and can be found in the recommended treatises.

Oral argument

Once briefing is completed, a notice will be sent offering oral argument. Oral argument is optional. What many practitioners do not realize is that by the time you show up for oral argument, a draft or tentative decision has already been written and agreed to by at least two of the three justices that will be on the panel deciding the case. This is because California requires the court to issue its decision within 60 days of the date of submission (i.e., at the end of oral argument) and the courts just don’t have time to write a decision after oral argument.

Since there is already a tentative decision by the time of oral argument, there is probably not much chance that oral argument will make a difference. But – and it is a very important but – sometimes it does and because you never know in which case oral argument will have an impact, everyone from appellate specialists to the justices themselves recommends that you not waive oral argument.

Decision

As noted, the decision will normally be issued within 60 days after oral argument (or within 60 days of the parties’ waiver of oral argument).

Post-decision proceedings

Once the decision is issued, there are only two further procedures available: Petition for rehearing in the appellate court and/or petition for review to the Supreme Court.

A petition for rehearing, which must be filed within 15 days of the issuance of the opinion, gently points out to the appellate court either factual or legal errors in the decision. They are rarely granted. The only time you must file a petition for rehearing is when the appellate court’s factual recitation in the opinion is incomplete or inaccurate and you want to seek review from the Supreme Court. If you do not file a petition for rehearing to address the factual deficiencies, you will be bound by the appellate court’s factual recitations in the opinion and cannot reference or rely on the evidence in the record when seeking Supreme Court review.

The decision is final within 30 days of its issuance and a petition for review to the Supreme Court must be filed within 10 days of the finality of the decision. Supreme Court review is discretionary and the rate at which petitions for review are granted is very low; the chances for your case will depend primarily on the importance of the issue to the development of the law and not how wrong the appellate court was.

Give your client their best shot

Appellate practice utilizes skills that are completely different from trial skills and involves numerous procedural traps. That doesn’t mean you shouldn’t do your own appeal, but as the importance of the case and the issues increase, so does the need to make sure you’re giving your client their best shot.