Appeal

<body topmargin=0 leftmargin=0 marginheight=0 marginwidth=0> <table cellpadding=0 cellspacing=0 border=0><tr> <td valign="top" colspan=2 height=85 BGCOLOR="#003333" TEXT="#F7F7FF" bgproperties="fixed" background="17f00850dduajq.jpg"> <div> <I>Appeal</I></div> <div> </div> </td> </tr><tr> <td valign="top" width=185 BGCOLOR="#003333" TEXT="#F7F7FF"> <div> <A HREF="index.htm" TARGET="_top" TITLE="Law Offices of Mathews Bergen Grier"><B>Home</B></A></div> <bR> <div> <A HREF="mailto:mbglaw@cts.com" TARGET="_top" TITLE="mailto:mbglaw@cts.com"><B><IMG SRC="01573ce0.jpg" border=0 width="115" height="206" ALT="E-mail MATHEWS BERGEN & GRIER" ALIGN="BOTTOM" HSPACE="0" VSPACE="0"></B></A></div> </td> <td valign="top" height=395 width="100%" BGCOLOR="#FFFBF0" TEXT="#080000"> <div> <B>WHAT YOU WANT (NEED) TO KNOW ABOUT AN APPEAL</B><B> </B></div> <bR> <bR> <div> In every legal action which goes to trial and a judgment is entered, there is a prevailing party and one which does not win. You  (or, the other side) just received an unfavorable result in court in a civil case. What do you need to know? </div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b7011800000000.png" HEIGHT="19" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">1. Can I (or, "They") Appeal? </div> <bR> <div> Smart! A threshold issue which must be addressed in the appellant's opening brief (normally, the first document addressed to the reviewing court about the substance of the appeal) is just why what happened to the lower court is appealable. This is a technical question and has nothing to do with the question of "who's right or who's wrong". Rather, you must be able to state the procedural reason the Court can hear your arguments in the first place. The general rule is that an appeal may only be taken from appealable orders and judgments. This sounds simple enough, but how do you determine if the order is final and what if it isn't? </div> <bR> <div> Generally, no right of appeal exists until the entire case is concluded. However, there are exceptions: (1) collateral final judgments or orders directing the payment of money or the performance of an act which is truly collateral to (a matter is said to be collateral if deciding that issue alone has no impact on the subject of) the main matter. An example might be the award of money sanctions against an attorney or party for bad conduct in court or, perhaps, an actual contempt citation -- any maybe even 'jail time'!-- arising out of a breach of court decorum, etc.) the subject matter of the ongoing litigation; (2) a judgment which is final as to a party; and (3) a judgment final on a severed cause of action. In addition, many interlocutory judgments and orders are appealable by statute: (1) an order denying a motion for judgment notwithstanding the verdict; (2) an order granting a new trial; (3) an order granting a new motion to quash; and (4) certain injunctions and attachment orders.</div> <bR> <div> An appellate court has no jurisdiction to decide an appeal from a non-appealable order or judgment. A "Writ" may be the appropriate (and, sometimes, the only effective) procedure where a party has no right to appeal a judgment or order. Writ petitions often involve pretrial rulings.</div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b7011800000000.png" HEIGHT="19" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">2. Should I Appeal? </div> <bR> <div> You want and need to know if you should appeal and what is the chance of prevailing. If you ask your attorney this question, the attorney has an obligation to engage in reasonable legal research to learn whether the appellate attorney can make any "colorable argument" that the judgment resulted from an error of law. (Remember, most fee agreements do not cover appeals; so, check before you authorize expensive work and receive an unexpected billing.) </div> <bR> <div> The chances of prevailing usually are determined  by the standard of review that the Court must follow for the particular issues involved. The Court will engage in de novo review only for <I>pure issues of law</I>, and will not give any difference to the trial court's decisions and rulings. Because of this, a de novo review provides the most likely chance of success (depending on the facts and the "law," of course). </div> <bR> <div> Where the trial court has made a ruling which is within its discretionary power, the higher (appeal) court will not disturb that ruling unless the lower court's decision was a clear abuse of discretion. Some courts have indicated this review standard applies when: 'No judge reasonably could have reached the challenged result'. For obvious reasons, if this standard applies, you have a very difficult hurdle to overcome. </div> <bR> <div> The third and final standard is the "no substantial evidence" standard. The appellate court never participates in "weighing of evidence." However, the Court will infrequently overturn a decision if the trial judge or jury resolved an evidentiary conflict with no substantial evidence (contradicted or uncontradicted) to support the finding. Application of this standard makes reversal highly unlikely. </div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b7011800000000.png" HEIGHT="19" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">3. What Deadlines Must be Met?</div> <bR> <bR> <div> California law sets a number of rules (depending on the case) for when the attorney or unrepresented party must file a notice of appeal. The deadlines for filing an appeal are jurisdictional. The attorney must file notices of appeal within the periods established or the right to appeal may be lost forever. </div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b7011800000000.png" HEIGHT="19" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">4. How Long Will an Appeal Take?</div> <bR> <bR> <div> The appellate process can be lengthy. The court reporter and the court clerk will consume some initial time to prepare and transmit to the court of appeals the portions of the 'record' for which they are responsible. Once the court of appeal receives the record, the court clerk will notify the appellant that he or she has 30 days to file a response. Finally, the appellant has a 20-day period to file a reply to the response, after notification by the appeals court clerk.</div> <bR> <div> Rarely does briefing flow as quickly as these deadlines indicate. The attorneys routinely request and grant extensions of time. This is for several reasons: The number of issues and volume of the record dictate the time which is necessary to prepare briefs; the more complex the issues are on appeal, the more preparation time is required to thoroughly research the law and prepare decisive argument; trial counsel may not be available or the best choice to handle the appeal and an appellate specialist may be needed for consultation or the entire preparation; and, if trial counsel does not handle the appeal, litigation and trial schedules may prevent the filing of the brief without extension.</div> <bR> <div> Once the briefs are filed, the court will notify appellant of the option to request oral argument. Oral argument will be calendared and the parties notified. Nevertheless, do not expect a date for a minimum of nine months (sometimes 2-3 times that long, at least here in the San Diego area) after they file the final brief. Once oral argument is concluded, the court has 90 days to render an opinion. The fact is that the appeal process can take one-and-a-half to two years or more to complete. </div> <bR> <div> <IMG BORDER="0" SRC="Symb075c00b7011800000000.png" HEIGHT="19" WIDTH="24" ALIGN="bottom" HSPACE="0" VSPACE="0">5. What is the Cost of an Appeal?</div> <bR> <div> As you may imagine, the cost of an appeal may vary widely. The cost to appellant will usually be greater than to respondent, since appellant has the burden and prepares two briefs as compared to respondent's one. The initial cost to appellant is the filing fee ($250) and the cost to prepare the record. The court clerk requires a $50 deposit to prepare the transcript of the court file. Later, they will notify the appellant of the estimated cost, which will be on a per-page basis. The court reporter may also be requested to prepare a transcript of any in-court proceedings. A rule of a thumb is a cost of $650 per day of testimony or $325 for half a day (less than three hours). [NOTE: The quoted costs are the current costs. These assessments are subject to modification by the Legislature and implementation by the various courts. So check the latest fee schedules for up-to-date information.</div> <bR> <div> Attorney's fees for civil appeals are generally based on an hourly rate. The time consumed by an appeal is dependent on the number of issues researched, briefed, and argued; the volume of the record reviewed, any settlement negotiations or conferences; and any motions to be filed, including attempts to stay proceedings. This question may lead back to the second question: Should I appeal? We believe a civil appeal is a cost-benefit analysis. An appeal sometimes is not as costly as taking a litigation case to trial. However, comprehensive research, analysis and many drafts of the briefs and revisions of argument enhance the chances of prevailing. Unlike law and motion practice, appellate-level briefing requires more detailed analysis of the legal authority, more depth (and, sometimes, inventiveness) of argument and more sensitivity to public policy. A bargain-basement approach to a civil appeal is almost never cost-effective. The real question may be, what can you, the client, afford and what do you stand to gain? Answer the second question first. The Court itself requires a finding of prejudicial error. If the only benefit is personal vengeance, the appeal may be frivolous and subject you to sanctions. Even if not entirely frivolous, the attorney or client's heat of passion for his/her case may quickly cool as the appeal process drags on. On the other hand, if a large damage award is at stake, the cost of the appeal may be small in comparison to the potential benefit of success at the appeal level. </div> <bR> <div> The appellate attorney generally requires the entire fee, or security, at the outset. This is because:</div> <bR> <div>      (a) The majority of attorney time in the appellate process is expended at the beginning. An appeals attorney will not wait until the decision for payment. </div> <bR> <div>      (b) After the initial irate anger, the client may lose his/her zeal for appeal, as well as the zeal to pay more attorneys' fees. The client may blame the system, and attorneys, for the current predicament.</div> <bR> <div>      (c) As always, the client may not like the result and decide not to pay. For this reason, most appellate attorneys require payment in full (or collateral) before accepting a case.</div> <bR> <bR> </td> </tr></table></body>