> Frequently Asked Questions

What is an Appeal?

Overview

An appeal is a challenge to a trial court’s decision or a jury verdict. The appellate court does not retry the case, but reviews the case to see if error occurred at trial. But error alone is not sufficient for the appellate court to reverse the trial court’s decision or a jury’s verdict.

Who Can Appeal?

The losing party has a right to an appeal. The person appealing is referred to as the "appellant." The other party is referred to as the "respondent." In a limited jurisdiction case, the losing party appeals to the appellate department of the Superior Court. In an unlimited jurisdiction case, the losing party appeals to the Court of Appeal. If one loses in the Court of Appeal, there is no right to have the matter heard before the California Supreme Court. To have the case heard by the Supreme Court, the attorney petitions the Court and asks the Court to hear the appeal. The California Supreme Court does not accept very many cases.

The Record on Appeal

The trial court and juries receive evidence by way of exhibits and oral testimony. To learn more, go to What is Evidence? If an appeal is taken, the appellant must designate the record on appeal for the appellate court to review. The record typically includes a court reporter’s transcript of the oral proceedings and a copy of the clerk’s transcript. The clerk’s transcript includes the notice of appeal, the judgment or order appealed from, the notices to prepare the reporter’s and clerk’s transcript and the register of actions. Other documents typically include exhibits, jury instructions, and pleadings filed with the trial court that may be in issue on appeal.

The Appellate Brief

The appellant prepares and files an appellant’s opening brief. The respondent them files its brief. The appellant has the option to file a reply brief. The introduction of the brief gives a short summary of the case and a statement of the contentions. Following the introduction, the opening appellate brief summarizes the relevant procedural history. Next comes a statement of facts. The facts should be presented in a way that will persuade the appellate justices that an injustice has occurred. Whenever a fact is mentioned, it must be supported by a citation to the record. The next section of the brief is the discussion where the attorney cites the applicable law, applies the law to the facts and argues his or her position

Mary M. Bennett has been recognized for her experience in appellate practice.

The appellate courts limit the number of pages a brief can contain. Therefore, it is necessary to focus on those issues that are most important in having the appellate court rule in your favor

Oral Argument

The California Constitution gives the parties the right to orally argue the appeal before the justices who will decide the case. In the Court of Appeal, three justices decide the case. In the California Supreme Court, all of the justices decide the case. There are seven Supreme Court justices. (For more information on the Supreme Court of California, check its website at: http://www.courtinfo.ca.gov/courts/supreme/

The appellate justices will have read the briefs before argument. Oral argument should not be used to restate what has already been written. Oral argument gives the attorneys the opportunity to answer any questions the Justices may have.

The Standard of Review

Appeals are generally lost. This is because most appealed judgments and orders are presumed correct. The appellant has the burden to demonstrate an alleged error. If there is any ambiguity in the record, it is resolved in favor of the respondent.

On appeals challenging a trial court’s decision or a jury verdict on the grounds that there was insufficient evidence, the appellate court must decide if the decision or judgment was supported by substantial evidence. Even if the substantial evidence was contradicted and even if the Justices personally would have ruled differently, the appellant will lose if the evidence was substantial. The testimony of a single witness, even if that witness is a party, may constitute substantial evidence.

Some cases, the appellant argues that the trial court abused its discretion. Discretion is abused if the trial court exceeds the bounds of reason. It is the appellant’s burden to establish an abuse of discretion.

Typically, trial court error alone will not require the appellate court to reverse a judgment. Appellate courts will generally reverse only if the error or improper ruling was prejudicial. In basketball, the late Laker announcer Chick Hearn would say, "No harm, no foul," when a referee chose not to make the call. In law, that means that if a different result would not have resulted absent the error, the appeal will be denied. Harmless errors will be ignored by the appellate court.

Conclusion

The foregoing is a brief primer on appellate law. Every case can be appealed. Some cases will be reversed on appeal. It is important that the trial lawyer understands what acts or omissions at trial can result in a successful appeal in order to avoid a reversal. After judgment or verdict, it is important that the attorney recognize which case is vulnerable to attack an appeal.

The attorneys at Cheong, Denove, Rowell & Bennett have not only been recognized for their experience in litigation, but also in appellate practice. Very few cases that are litigated go on to appeal. Very few of the decisions from those appellate cases are certified for publication. When a decision has been published, the rules set forth in the decision are considered to be law and must be followed by lawyers and judges in other cases. The attorneys at Cheong, Denove, Rowell & Bennett have more than fifteen appellate decisions that have been certified for publication. To learn more about go to Reported Appellate Decisions.

At Cheong, Denove, Rowell & Bennett we believe the more you know, the better choice you will make.

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