By Donna Bader
You've just spent the last week in a jury trial. Unbelievably, the jury decided against you! You refuse to believe this is the end of the matter and you are determined to fight your case all the way to the Supreme Court. Although you may be angry or disappointed, you need to understand some basics about the appellate process before you decide whether to appeal or not.
An appeal is not a retrial. You can't call witnesses or present testimony. The Court of Appeal or Supreme Court is not deciding your case on its merits; it is looking for a legal error in the trial below. That error may be one committed by the court, the jury, or even the opposing counsel. Some examples of legal error are:
- The court excluded important evidence
- The court improperly admitted evidence
- Jury misconduct
- The decision was not supported by "substantial" evidence
- The opposing attorney committed misconduct
- The trial court misconstrued or misapplied a statute
The courts of appeal do not reweigh the evidence or determine a witness's credibility. The jury decides if a witness is truthful and weighs the evidence. They get to see a witness's demeanor while the reviewing court reads written documents.
To justify reversal, the error(s) must be prejudicial and result in a "miscarriage of justice." Errors often occur during a trial; no trial is perfect. You must show an error so significant that it is more likely than not it affected the outcome of the case. A judgment will not be reversed if the error is "harmless" or the jury would have reached the same decision anyway.
The role of oral argument is less significant on appeal than a closing argument made during a trial. The appellate process is heavily dependent upon written briefs that show the facts and law of the case. These briefs are accompanied by the "record": a clerk's transcript of filed documents, a reporter's transcript of the live testimony, and the exhibits introduced at trial.
The reviewing court will not review the errors committed by your attorney. If your attorney decides, as a matter of strategy, not to call a witness or have you testify to a certain fact, which later turns out to be important, these decisions will not be reviewed on appeal. A bad strategy decision does not always mean that malpractice was committed. They could simply be strategy decisions that have backfired or been misguided.
If your attorney commits malpractice, that misconduct cannot be fixed by an appeal. Your remedy is to sue the attorney for damages for malpractice if his or her conduct fell below the standard of care practiced by other attorneys in the same community and caused you damage.
Although it seldom occurs, an attorney may commit malpractice intentionally. This can occur when your attorney actively conceals some important facts from you or commits fraud.
Another error occurs when you or your attorney have "invited" the error. This happens when misconduct by someone else has occurred – by opposing counsel, the jury, or the court - but your attorney fails to speak up until the case is lost, thus depriving the court of an opportunity to fix the problem. Your attorney may complain about the evidence at trial, but then it turns out your attorney opened the door by asking questions or even introducing the evidence.
THE APPELLATE PROCESS
Appeals are started by filing a timely notice of appeal and paying a filing fee and a separate fee to prepare the transcripts. If the notice is filed too late, you will lose your right to appeal. It is rare that you can get relief from a late filing. The deadline for filing a notice of appeal is governed by seemingly complex rules and an expert in the field should be consulted so that the appeal is not lost before you have had an opportunity to present your case. You must also "designate" what parts of the court file and reporter's transcripts are to be prepared for a meaningful review.
The parties then prepare written "briefs," which discuss the applicable facts and law, and tell the reviewing court why the result below was wrong. Because the burden is greater for the loser, the "appellant," or person appealing, prepares both an opening and closing brief. The party responding is called the "respondent" and prepares only one brief.
After the case is fully "briefed," the court and its attorneys conduct a review and analysis of the case. Once that review is completed, the case is set for oral argument, which usually takes about a half hour to complete. During that process, attorneys can make a presentation to the court or be prepared to answer questions submitted by a three-justice panel.
1. What can you expect to pay for an appeal in California?
An appeal can be a costly venture. The filing fee is currently $655. You can also expect to pay for preparing the record and obtaining a reporter's transcript, copying and printing costs, and service fees. Those costs alone can be in the thousands. Your attorney may charge an hourly or lump sum rate. If you consult an expert, which may be certified by the State Bar, the hourly rates range from $150-500. A typical appeal can range from $10,000 to $45,000. If you win, you may be able to recover these costs from your opponent. Attorney's fees, however, can only be awarded subject to contract or statute.
2. What are your chances of success?
An appeal is not a 50/50 proposition. The statistics vary, but your chances of obtaining a reversal are typically in the 15-25% range. Not great odds. For that reason, an appeal should be approached as a financial expenditure, not something pursued out of anger or "on principle." Some appeals simply cannot justify the expense based on the risk involved. The decision to appeal should be made without emotion after objectively analyzing all factors. In some cases, you may obtain a reversal, only to face a second trial with the possibility of a worse result than before.
3. Will an appeal automatically stay the judgment against me?
An automatic stay stops enforcement proceedings against the loser. While some judgments are automatically stayed on appeal, a money judgment against you is not subject to an automatic stay. That means the opposing side can immediately try to enforce the judgment (before the time it takes for you to appeal). Your opponent may resort to levying against your bank account, garnishing your wages, or serving a subpoena to force you into court so you can be examined under oath about your assets. To stop enforcement, you will need to post a bond and pay a premium for the bond. Because of the poor changes of success, a bond is usually only secured by cash, a line of credit, or real estate. The bond can be 1 ½ to 2 times the judgment, and if it cannot be obtained, it presents a real financial burden to the losing party.
4. How long will the appeal take?
An appeal usually takes one to two years. Appeals in more complex or longer cases can last longer, especially if the parties ask for numerous extensions to file their briefs. Filing an appeal can take an emotional toll on a party, who may prefer an end to the litigation. In addition, if there is a money judgment, interest on the judgment will accrue at 10%, which can end up resulting in a substantial loss.
5. Can your trial attorney handle the appeal?
Opinions vary on whether you should continue to use your trial attorney for an appeal. This depends on the skill level of the attorney. Appellate procedures come with their own set of rules. Many attorneys get lost in a maze of these procedures. Ask your trial attorney how many appeals he or she has handled. If they are not competent to handle an appeal, they should refer the appeal to someone who is.
Trial attorneys may also be caught up emotionally in losing the case and may not be objective. Just as not every attorney is skilled in trying a case before a jury, not every attorney is a talented writer. While State Bar certification as a specialist is not necessary, it does mean the certified attorney has passed a rigorous test, has significant experience in the area, and devotes a substantial part of his or her practice to handling appeals. On the other hand, the trial attorney usually knows the case almost better than anyone else (except you, perhaps).
CONCLUSION
After reading this article, you may feel that you have no chance to win an appeal. Not so. In some cases, legal errors have been committed and you deserve another chance. In many cases, an appeal lacks merit or just makes bad financial sense. When you meet with an attorney to discuss a possible appeal, be sure to discuss all factors affecting your decision. While no attorney can or should guarantee your success, the attorney should be able to explain in convincing detail why you have a good shot at appeal. If the attorney fails to convince you, it is unlikely the attorney can persuade the court of appeal to reverse the judgment.
__________________________________________________________
Donna Bader is an attorney who has been certified by the State Bar of California, Board of Legal Specialization as a certified specialist in appellate law. She practices exclusively in the area of civil appeals and writs in Laguna Beach. She can be reached at (949) 494-7455.
[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]
