- What is an appeal?
An appeal is a request to an appellate court to review and correct the decision of a trial court or other official decision maker.
- When can I appeal?
In general, a trial court’s entry of a “final judgment” is a prerequisite to filing an appeal (exceptions are addressed elsewhere in this FAQ). A final judgment ends the proceedings by completely disposing of the matter in controversy. This requirement differs between California and federal courts.
If a jury verdict has been entered against you, you must wait until the trial court enters a final judgment before challenging the verdict.
When you appeal from a final judgment, you may also challenge other earlier rulings that were not yet appealable until the trial court entered final judgment, including, for example, but not limited to, discovery orders, evidentiary orders, and summary judgment/adjudication denials.
- What if I want to appeal a ruling before my case is over (i.e., before there is a “final judgment”)?
A “final judgment” is usually required before filing an appeal, but a trial court’s ruling or order can be challenged before a “final judgment” either (1) because a statute makes it appealable, or (2) by filing a writ petition. Seeking review by appeal is different from seeking review by writ petition. A party aggrieved by an appealable order or judgment has a right to an appeal (i.e., the appellate court must review it), whereas a petitioner challenging a non-appealable ruling via writ petition only obtains review in the appellate court’s discretion. Writ review occurs only in extraordinarily rare circumstances.
Examples of pre-judgment, appealable orders include: injunction orders, orders on motions to disqualify counsel, orders on anti-SLAPP motions to strike, and orders of dismissal.
In California family law and probate cases, many court orders can be immediately appealed even if they are made before the final judgment.
- When is the deadline to appeal?
California: With certain exceptions, in unlimited civil cases (involving an amount over $25,000), the general rule is the first to occur of one of these events:
(1) 60 days after a party serves a “notice of entry of judgment” or appealable order;
(2) 60 days after the Superior Court clerk serves the party appealing with a “notice of entry of judgment” or appealable order; or
(3) 180 days after entry of judgment or appealable order.
Unlike most other date-of-service based deadlines, the clock starts running on the date of service, with no extension for mailing. Electronic service is effective at the time the document is electronically transmitted or at the time the document’s electronic service notification is sent.
Federal: With certain exceptions, the deadline to appeal is 30 days after entry of the judgment or order appealed from.
- Can I file an appeal after the deadline?
No. A failure to timely file and serve a notice of appeal generally forfeits your right to appeal.
- How do I appeal? Where do I file?
California: You file a notice of appeal, along with a filing fee, in the Superior Court where the case was decided—not in the Court of Appeal.
Federal: You file a notice of appeal, along with a filing fee, in the federal district court where the case was decided—not in the Court of Appeals.
- What happens after I file a notice of appeal?
You must designate “the record.” The appellant chooses parts of the trial court record—i.e., court filings, exhibits, and transcripts of what was said on the record—to send to the appellate court. You will eventually cite those materials in your briefs to show the appellate court what happened in the trial court and why there was harmful error.
- What does the appellate court review on appeal?
An appellate court generally reviews only two things: (1) whether a legal mistake was made in the trial court; and (2) whether this mistake impacted the final judgment.
- Is an appeal like a retrial? Can I bring in new evidence or testimony?
No. In general, an appellate court only considers testimony and evidence that was part of the record in the trial court.
- Which appellate court will decide my appeal?
California: There are six appellate districts in California. Your appeal will be heard in the district where your case was heard in the superior court. The larger districts are split into multiple “divisions.”
Federal: The federal appellate court system is divided into regional “circuits.” Your appeal will be heard in the circuit court of appeals in the geographic region where your case was heard in the district court.
- How do I know which judges/justices will decide my appeal?
California: Cases are randomly assigned to a panel of three judges (called “justices”) from the appellate division where your case is assigned. California’s districts and divisions differ as to when the justices that will decide your appeal are publicized.
Federal: Cases are randomly assigned to panels of three judges. The names of the judges on the panel are released to the public on the Monday of the week before oral argument.
- Should I hire an appellate lawyer, or use the same lawyer who represented me at trial?
Appeals require a unique type of expertise, so whether you won or lost in the trial court you should consider hiring an appellate lawyer. Click here for more detailed information: https://www.gmsr.com/about/why-appellate-counsel/
- What happens to a money judgment against me while my case is pending on appeal?
Most money judgments are stayed on appeal only if the appellant posts security, usually in the form of a bond from a personal or corporate surety. There are special rules for other kinds of judgments, but most are not stayed without some kind of action that protects the winning party’s interests.
- What is the timeline for an appeal? How long does an appeal take?
An average appeal can take anywhere from one to three years depending on a variety of factors (although one year is rare). Click HERE for a detailed appellate timeline.
Some types of appeals are entitled to priority.
- What is the burden of proof (i.e., standard of review) for an appeal?
The burden is on the appellant to show that there was a legal error, and that the legal error impacted the final judgment.
Different review guidelines apply to different kinds of trial court decisions. These guidelines are called “standards of review.”
The three most common standards of review are: (1) the “abuse of discretion” standard, which applies if you are appealing a decision involving the trial court’s exercise of discretion; (2) the “substantial evidence” standard, which applies when you argue that insufficient evidence supports the trial court’s or jury’s factual findings; and (3) the “de novo” standard, which is reserved for reviewing legal issues, such as the interpretation of a statute or contract.
- What are my chances of winning in an appeal?
According to the California Court of Appeal’s website, “less than 20% of all civil appeals succeed in reversing the original ruling.” But your specific chances will depend, in large part, on the “standard of review” that applies to the rulings you are challenging—and your lawyer’s creativity at determining which issues in your case are most promising.
- What happens after I win an appeal?
California: An appeal is not “final” until 30 days after the Court of Appeal files its written opinion.
The losing party has 15 days after the decision is issued to file a petition for rehearing in the Court of Appeal, and 10 days after the written opinion becomes “final” to file a petition for review in the California Supreme Court.
Shortly after an appeal is final, the Court of Appeal transfers the case back to the trial court via a document called a “remittitur.” The remittitur ends the appeal process.
Federal: After the court of appeals issues its opinion and judgment, the losing party has 14 days (or 45 days if the United States is a party) to file a petition for rehearing, which asks the same panel of judges and/or an “en banc” panel—a larger group of judges from the court—to reconsider the decision. Seven days after the time for filing a petition for rehearing has run, the court will issue the “mandate,” which transfers jurisdiction back to the lower court and formally directs the lower court to do what the court of appeals has ordered in its judgment.
If the losing party wishes to seek review by the United States Supreme Court, they have 90 days to file a petition for writ of certiorari.
- If I lose on appeal, how can I get a higher court to hear my case?
California: There is no right to have a case reviewed by the California Supreme Court. You must file a petition for review, and the California Supreme Court only grants review in its discretion, typically “[w]hen necessary to secure uniformity of decision or to settle an important question of law.”
Federal: In general, there is no right to have your case reviewed by the United States Supreme Court. You will have to file a petition for writ of certiorari. The U.S. Supreme Court only grants review in its discretion, typically to decide compelling legal questions when federal circuit courts have reached contradictory conclusions.
- Can I recover attorney fees that I owe to my attorneys, or appellate costs, in connection with pursuing an appeal?
In general, the “prevailing” party on appeal is entitled to recover costs on appeal, but this does not include attorney fees. However, if a contract, statute, or law entitles you to attorney fees, you can recover them.
