How an appeal begins

It is normal for potential clients to have different expectations or ideas attached to
the first contact with an attorney. However, the bottom line is usually that they want to
know if the attorney has the necessary skills to handle the case and a commitment t
o their cause. Good attorneys are certainly open to questions about their experience
and skill in a particular area of law, and, it should be a part of any client’s due diligence
when selecting appellate counsel. As in any relationship, commitment takes place in the
context of understanding the wants and needs of each party to the relationship and
whether they can be fulfilled.




How Do I start an Appeal?
As a potential client who is considering appealing a judgement or verdict, one of the most important concepts to understand is that this next step is very different than what you may have experienced in trial court. Because the trial court rulings, records and evidence are critical items for an appellate attorney to consider, it is not practical to attempt to discuss the issues with just a phone consultation.

There are also very strict deadlines involved with all appellate filings, and adhering to those rules is the first step in successfully filing an appeal. In general, criminal felony, juvenile and civil appeals must be filed within 60 days of the written judgment or order appealed from in California state court. The filing deadlines in federal cases are shorter. See the Deadlines Section for an expanded explanation of State and Federal appellate filing deadlines.

When preparing to approach or discuss appealing your case, there are several key points David has developed for clients to prepare before he conducts an intake interview:
• take the time to prepare a written list of witnesses from the trial, and potential witnesses who either were not interviewed or did not testify:
• a chronology of events;
• a list of issues from the case;
• a copy of the [adverse] ruling, and any important motions and other documents in the client's possession that were presented at trial

Once David has reviewed these documents, he’ll have a better idea of the issues that should be explored in conversations with the client and/or trial attorney. He will also have
a better idea at that point about the records needed for review, any possible new investigation that remains to be done, and the experts he might need to consult.

Will the attorney be able to tell me what my chances are after reviewing my case?
One important practice David makes when potential clients ask the inevitable question, “what are my chances?” is to make the distinction between discussing an appellant’s “chances” in prevailing in an appeal versus his (and ALL attorneys’) ethical requirement of never promising a result. The fact is, there is no such thing as a guaranteed result, no matter how strong a case might appear, no matter how many errors the trial court or jury may have made, or other problems that may have occurred during trial.

David does not engage in “drive by” quotes, or purely speculative possibilities. It is not David’s practice to quickly discuss a case over the phone with the expectation that he can render an opinion on the merits of the case from just that call. What he does offer is the ability to thoroughly and exhaustively review your case, from the initial incidents through the conclusion of the trial and findings. He finds it usually takes several conversations, written input from the client, and a review of pertinent records before he is able to offer a reasoned opinion about the strengths of the issues on that case. In other words, the purpose of an intake interview is a multiple session process to help him guide a client into determining the strengths of pursuing an appeal– NOT to answer if the appeal can be “won.”

Can I submit new evidence in my appeal?
As the introduction to this web site stated, in California– less than 1 in 5 civil judgements, and 1 in 8 criminal verdicts were reversed on appeal– and those statistics are based on the cases actually heard by the Court, not filed.

One of the main reasons for that statistic is that the Court of Appeal does not weigh the evidence heard by the trial court or, with very rare exceptions, consider new evidence.
For example, if the trial jury believed the evidence that your shirt was white, the Court of Appeal will not consider a [new] argument that it was actually gray. The Court’s only job is to review whether the law was correctly applied to what the trial court considered to be the facts and whether proper procedures were followed. An appeal is not an opportunity for a second trial.

That said, it is not impossible for an appeal to challenge the evidence that was considered at trial. The Court of Appeal does have authority to consider whether certain evidence that was excluded should have been admitted, and whether evidence that was admitted should have been excluded.

In addition, the Court of Appeal can determine whether the evidence was sufficient to support a trial court outcome. However, that is a large hurdle to overcome – in general, an appeals court will uphold a decision based on facts if there is any evidence in the trial record that supports it, even if the appellate court itself might have decided otherwise.
This is why having a seasoned appellate attorney is crucial in exploring the various Standards of Review, and, if there is sufficient cause to pursue an appeal, plan a successful course of action that will result in the Court hearing the case– and, hopefully ruling in your favor.

What happens when I file an appeal?
After notice of appeal has been submitted to the Court, the parties to an appeal then submit written briefs to the Court of Appeal, along with a copy of the clerk's and reporter’s transcripts and sometimes the exhibits that were used during trial. Oral arguments may be scheduled, although many attorneys waive this right. David’s practice is to always defend his clients’ right to those arguments, as it’s literally the only opportunity to actually address the Court in person.

Generally, the Court’s staff of internal lawyers, known as Law Clerks (a very different position than Clerk of the Court), read the briefs, perform legal research on the issues briefed, and present the justices with a rough draft of an opinion. This becomes the basis for the justices’ deliberations, and ultimately, a decision. Although most appellate courts will have a “pre-decision” in place by the time oral arguments are scheduled, it can be negatively interpreted when an attorney waives that right.

Although most decisions are settled before the point of oral arguments, there is always the rare possibility that a compelling oral presentation might cause the Court to reconsider a position. The oral arguments are not long multi-hour events such as trial closings, and tend to focus on legal issues, or arguments of law.

Review by the Court of Appeal of a judgement or conviction is similar to watching a sporting event, using ‘instant replay’ to search for errors made by the referees. If the referees made a lot of errors in a close event, you begin to consider that their mistakes materially changed the final results. But– even if the refs committed a lot of errors, the final score can sometimes be so one-sided, that you could reasonably conclude that the mistakes wouldn’t have affected the outcome. The panel of justices in the Court of Appeal are looking for errors made by the trial court which may have demonstrably changed the verdict, and will dismiss "harmless errors," which [they] believe did not have an effect. The Court will not consider mistakes of "trial strategy", which is applied to the attorneys of either side; using the sports analogy above, if a team coach [either side’s attorney] chose a play that didn’t work, he isn’t allowed to ask the referee to run the play over.

What’s the difference between a writ and an appeal? Should I consider a writ?
A “writ” is essentially an order from a higher court ordering a lower court to do something. Writs provide a process for review of trial court rulings by the Court of Appeal that are not immediately appealable. An appellant who is seeking a writ does so by means of a “petition to the Court”. Denials of writs usually take a summary form – instead of issuing a written opinion, as is done with an appeal, a writ can be denied with a mere notice or equivalent. The petitioner seeking the writ is often left to guess or ponder at the reasoning of the Court of Appeal. And, the petitioner has no right to oral argument before summary denial by the Court. The upshot of pursuing a writ is that the whole process is much faster than an appeal– decisions can be rendered in days rather than weeks or months.