13 Important Appellate Services for the Busy Trial Attorney

1. Establishing Deadlines for Filing the Notice(s) of Appeal

Although most trial attorneys are aware that a notice of appeal must be filed 60 days after the notice of entry of judgment is served (Rule 1), there is usually some confusion as to when the notice of appeal is due when post-trial motions are involved. Motions for new trial, motions for JNOV, and motions for attorney’s fees and costs all impact the time for filing the notice of appeal and how many notices of appeal must be filed. Since filing a notice of appeal now costs $655.00, the careful trial attorney will want to be absolutely certain that he or she knows the precise deadlines applicable to his or her case. I can help you with this important step in the appeal.

2. Preparing a Designation of the Record That is Appropriate to the Case

The trial attorney will probably be aware that transcripts are expensive and that they have to be designated very specifically within 10 days after the notice of appeal is filed. Do you need to pay for the whole transcript? Can you use the Rule 5.1, self-prepared appendix method? What makes the most sense in your particular case?

3. What about Bonds, Stays of Execution, and Writs of Supersedeas?

If you won a judgment in the trial court, is it safe to execute on the judgment while the appeal is pending? If you lost, can the other side execute on your client while your own appeal is pending? If you need a bond, how do you go about getting one? If you need a stay from the Court of Appeal, how do you go about asking for one?

4. Briefing Schedules and Extensions of Time

The Court of Appeal is now “current” which means that extensions of time are getting harder to obtain. Can you stipulate to a briefing schedule with the other side? What happens if that is not enough time? Does it matter if you use the Rule 17 time?

5. Reviewing the Record on Appeal

The only facts the Court of Appeal will know about your case appear on the written record. Even though you lived through the trial, preparation of a persuasive Appellant’s Opening Brief depends on accurate citations to the written transcript. Even though I wasn’t present at your trial, I can review and analyze your transcript using the same techniques and perspective used by the Court of Appeal staff attorney who will ultimately summarize your case for the Justices. The bedrock of an effective appeal is the construction of careful summary of all of the evidence presented in the transcripts.

6. Finding the Issues

Do you know what issues will be the most persuasive to the Justices deciding your case? Just as you could tell me what issues are most likely to be persuasive to a trial judge or jury, I can tell you what issues are likely to succeed on appeal. Finding all the potential issues is one of the most essential parts of any appeal. Selecting the best possible issues from all the potential ones is just as important.

7. Legal Research

Most trial attorneys research points by taking a known case and doing electronic searches for similar cases. While this technique may net most of the important cases on a topic, the careful researcher must also understand the overall context of the particular issue and the various secondary sources which will point to related and analogous situations. Since I have done this for over 25 years, I can usually find more cases and similar situations than the trial attorney can.

Procedural issues are just as important as substantive ones. A high percentage of appeals are derailed by procedural problems with the appeal. These legal issues have to be extensively researched and presented, since one cannot expect the Court of Appeal to brush procedural problems aside just because the substantive case is a good one.

8. Drafting the Appellant’s Opening Brief

Telling a compelling story using only the facts presented in the record is an art form. While your legal points may be very important, most experts agree that your presentation of the facts in a fair, chronological, and persuasive manner is the key to an effective brief.

Once your story has been told, your legal research must be presented clearly. It must then be related to the specific facts of your case. I can help you with all drafting chores, and can also be a good sounding board for how a particular argument will play in the Court of Appeal.

9. Responding to Other Briefs

If you are the Respondent, the only time the Court of Appeal will hear from you is when you file your Respondent’s Brief. You cannot assume that the Court of Appeal will recognize bad law or incorrect facts presented by your opponent. You must proactively destroy the substance of the opponent’s brief. You may also have procedural defenses available which will allow a Court which is otherwise sympathetic to your opponent to rule in your favor.

If you are the Appellant, you have the last word by filing the Appellant’s Reply Brief. Do you need to repeat the points made in the Appellant’s Opening Brief? Can you introduce new points in the Reply Brief? Since it is your last word, you have to make it memorable.

10. Oral Argument

Should you ask for oral argument? What will it be like? How do you present your case without repeating your briefs? What questions are the justices likely to ask? Is there any way one can hear an oral argument before their case is heard? I have participated in dozens of oral arguments and can give you an idea of what is most likely to happen.

11. Reviewing the Opinion

What does the Opinion mean? What options are open? What will happen in the trial court if the case goes back? Your client will want to know the implications of the Opinion as soon as it comes out.

12. Petitions for Rehearing

Should a Petition for Rehearing be filed? What should it say? How many are granted?

13. Petitions for Review

If you win the appeal, does the other party have a good case for the California Supreme Court? If you lose the appeal, what issues are likely to be important to the California Supreme Court? What is involved in petitioning for review?