NEW: Web log devoted to Appellate Procedure
FT -- AN OVERVIEW OF THE APPELLATE PROCESS By Jay R. Ziegler DATE: 06/01/93
Reprinted from Litigation Briefs
Buchalter, Nemer, Fields & Younger
(Summer 1993/LA/Contact: Lee Coduti, (213) 891-5555)
Most business litigation is settled short of trial or
dispositive motion. When it is not, however, an appeal is not
uncommon. This is probably because the factors which forge settle-
ments, such as the uncertainty, expense, and a client's commitment
of resources inherent in litigation in the trial court, are sub-
stantially diminished at the appellate stage. The analysis of
whether or not to proceed with an appeal is simpler because both
the costs and potential benefits are more easily quantified.
Indeed, for the potential appellant there is often little to lose
in seeking a reversal.
Despite the increasing recourse to appellate courts,
business people on both sides of a possible appeal are often
unfamiliar with the stages of the appellate process which determine
how much time and money will be expended. The purpose of this
article is to provide a brief overview of the process of an appeal
from a judgment in a civil case in California state courts.
The Notice of Appeal
====================
Assuming a party has standing to appeal and the appellate
court can review the issue or matter on appeal, the appellate
court's jurisdiction is invoked by the filing of a notice of
appeal. The timely filing of a notice of appeal is indispensable.
The right to appeal is forever lost unless the appeal is commenced
by the earlier of (1) 60 days after the clerk mails, or a party
serves, a notice of entry of judgment or (2) 180 days after the
date of an entry of judgment. The filing in the trial court of a
motion for a new trial or to vacate the judgment extends the first,
but not the second, deadline for all parties until 30 days after
denial of the new trial motion. Generally, after a party files a
timely notice of appeal, all other parties may cross-appeal by
filing their own notices of cross-appeal within 20 days from the
date the first notice of appeal is filed.
Preparation of Record on Appeal
===============================
The court of appeal sees only those parts of the trial
court proceedings the parties designate and have prepared. This
step involves the preparation by the superior court clerk of the
clerk's transcript and the preparation by the court reporter of the
reporter's transcript. The clerk's transcript consists of a compi-
lation of requested papers filed or lodged in the superior court,
and the reporter's transcript includes a verbatim transcription of
all requested oral proceedings, such as all testimony at the trial,
made from the court reporter's notes. The appellant must file a
notice designating the record on appeal within ten days after fil-
ing the notice of appeal. The respondent may add to the record by
filing a notice designating additional portions within 10 days
after the appellant's designation notice.
The preparation of the record is the greatest cause for
delay in the appellate process and, with one exception, is largely
out of the parties' control. Although the clerk and reporter are
subject to deadlines in preparing the record, they almost always
fail to meet them. The clerk must complete the clerk's transcript
within 30 days after the appellant has deposited the estimated
transcript cost. As to the reporter's transcript, the reporter
must begin working on the transcript immediately upon receiving the
clerk's notice of the required deposit, and must complete and file
the transcript within 30 days thereafter. Experience shows that
preparation of the record, especially the reporter's transcript
where the trial lasted only several days, is often not completed
for the better part of a year.
When the reporter's and clerk's transcripts have been
completed, the superior court clerk is to immediately transmit the
original transcripts to the court of appeal, which then mails
notice to the parties stating the date these records were filed.
The one shortcut in this entire process is Rule 5.1 of
the California Rules of Court, which permits the parties to prepare
the clerk's transcript themselves. If an appellant elects to pro-
ceed under Rule 5.1, the parties must cooperate in the assembly of
an appendix containing the documents essential to the proper con-
sideration of the issues. It need not be filed with the court of
appeal until the filing of respondent's brief. An appellant using
a Rule 5.1 appendix does not have to wait for the superior court
clerk. In fact, if there is no reporter's transcript, the appel-
lant does not even have to wait for the court of appeal to order
the filing of the opening brief--it is automatically due 70 days
after the appellant files the Rule 5.1 election. Thus, the brief-
ing schedule is completely within the appellant's control and
nearly a year of delay can be avoided. Of course, most cases do
involve a reporter's transcript, the preparation of which usually
takes longer than the preparation of the clerk's transcript. Even
here, the appendix retains its timing advantage in cases where the
reporter's transcript can be quickly obtained.
Briefing
========
Briefing begins with the appellant's opening brief, fol-
lowed by the respondent's brief. The appellant has the option of
filing a reply brief and ordinarily will do so. Except where Rule
5.1 is employed, the appellant's opening brief is due within 30
days after filing of the record in the appellate court. Respon-
dent's brief must be served and filed within 30 days after filing
of appellant's opening brief. Any reply brief filed by appellant
is due within 20 days after the respondent's brief is filed.
These briefing deadlines can be, and often are, extended
upon application to the appellate court or by stipulation of the
parties. Most appellate courts readily grant at least one exten-
sion of 30 days upon a showing of good cause. The maximum exten-
sion by stipulation is 60 days for each brief, with further exten-
sions allowed by the court only upon applications showing good
cause.
Oral Argument
=============
Notice of oral argument is usually sent to the parties as
soon after completion of briefing as the appellate court's backlog
of cases permits. The time lag can be anywhere from weeks to
months after briefs are completed. The amount of time between
notice of oral argument and the argument itself varies among the
courts. Notices are sent anywhere from 21 to 60 days before the
scheduled hearing date. Upon completion of oral argument (or after
the time for supplemental briefing has passed if the court has
requested or permitted it), the case is deemed fully submitted for
decision.
The Decision
============
The appellate court should render a decision in less than
90 days after the case is submitted. (This is assured by the
California Constitution, which provides that if a case remains
pending and undetermined for 90 days or more after its submission,
the justices on the appellate panel to which the case is assigned
cannot receive their salaries.) The court's decision will be in
the form of a written opinion which, at a minimum, states the
essential facts and discusses each essential legal issue. The
opinion may or may not be ordered to be published in the Official
California Reporter. (Whether or not the opinion is published is
irrelevant to its effect on the parties.)
The opinion will dispose of the case in one of three
general fashions: (1) affirm, reverse or modify the appealed judg-
ment; (2) direct the proper judgment to be entered on remand; or
(3) direct a new trial or other further proceedings on remand. The
decision of the court of appeal becomes final as to that court 30
days after the decision is filed with the appellate court clerk.
Further Appellate Review
========================
If either side is dissatisfied with the appellate deci-
sion, there are two possible courses of action: (1) a petition for
rehearing in the court of appeal; or (2) a petition for review by
the California Supreme Court.
A rehearing in the court of appeal is a chance for a
party disappointed by the outcome to get a "second bite at the
apple" before the same court. However, rehearings are not fre-
quently granted, and appellate courts will reconsider their deci-
sions by way of a rehearing only on a showing of substantial error
in the decision. Even if there is some error in the appellate
court's opinion, the court is far more likely to correct it by
modifying its opinion and denying a rehearing. A petition for
rehearing must be served and filed in the court of appeal within 15
days after the decision is filed. The appellate court's deci-sion
whether or not to grant a rehearing is discretionary with that
court.
Review by the California Supreme Court differs from
review by the courts of appeal. The primary function of the appel-
late courts is to review for trial court error. The Supreme
Court's purpose, however, is to decide important legal questions
and maintain statewide harmony and uniformity of decisions, which
does not necessarily include correction of error by the court of
appeal in any specific case. Supreme Court review lies from the
court of appeal's decision, not the trial court's decision, and is
discretionary with the Supreme Court. Statistically speaking, the
chance of obtaining review, particularly in civil cases, is very
low. A petition for review by the Supreme Court must be filed
within 10 days after the court of appeal's decision becomes final
as to that court.
Post-Appeal Matters
===================
After an appeal is finally decided, the case is trans-
ferred back to the superior court by the issuance of a remittitur,
which notifies the trial court that the appellate court judgment is
final.
If the trial court's judgment is reversed on appeal, the
case generally returns for further proceedings in the trial court
subject to any specific directions by the appellate court, such as
a partial retrial or entry of a particular judgment. An unquali-
fied reversal (reversal without directions to the trial court)
vacates the judgment and remands the case for a new trial, as
though the case had never been tried or heard. In that event, the
parties are entitled to retry the issues anew and can present any
evidence relevant to the issues; they can even seek leave to amend
the pleadings.
Where the judgment is reversed and the case is remanded
for a new trial, the action must be brought to retrial within three
years after the remittitur is filed, or within five years of the
initial commencement of the action, whichever is longer. As a
practical matter, a retrial would take place in substantially less
time.
Conclusion
==========
Delays in California's overburdened court system are
inevitable. While there is no panacea for a client's dissatisfac-
tion with that delay, understanding how the system works may be of
some help in coping with it.
Jay R. Ziegler is a shareholder in the Los Angeles
office practicing general business litigation, with
an emphasis in appellate matters. Mr. Ziegler is
currently head of the firm's Appellate Litigation
Group in Los Angeles.
===================================================================
To Clients and Friends of Buchalter, Nemer, Fields & Younger
This is the first issue of LITIGATION BRIEFS, a publica-
tion designed to review litigation-related topics of interest to
all types of business organizations and their managers and owners,
in virtually every industry and profession.
If you wish to receive future issues of this newsletter,
or if you wish us to add any other names to our mailing list,
please tell us on the enclosed postcard. Please also tell us your
correct name, title, and address, if different from the address
label.
We also value your suggestions of topics that you would
like us to cover in upcoming issues.
LITIGATION BRIEFS is produced by members of the general
business litigation group at Buchalter, Nemer, Fields & Younger,
edited by Steven S. Karic and Frederick J. Brookwell, shareholders
in the group, and distributed quarterly or as issues of importance
relating to general business litigation arise. Please address any
comments or suggestions regarding LITIGATION BRIEFS to Steven S.
Karic or Frederick J. Brookwell, 601 South Figueroa Street,
Suite 2500, Los Angeles, California 90017-5704. Telephone
inquiries should be directed to Mr. Karic or Mr Brookwell, or to
the authors directly, at (213) 891-0700.
ABOUT OUR GENERAL BUSINESS LITIGATORS
The general business litigation attorneys at Buchalter,
Nemer, Fields & Younger are a diverse group who assist clients in
resolving disputes ranging from the most complex commercial trans-
actions to relatively straightforward business deals. Our litiga-
tors regularly appear before state and federal trial and appellate
courts in California and elsewhere, as well as various alternative
dispute resolution tribunals, such as the American Arbitration
Association and the National Association of Securities Dealers.
They also appear before a variety of state and federal regulatory
agencies, such as the SEC, Department of Labor, and state insurance
departments.
We represent clients in virtually every type of business-
related dispute, including breach of contract; business torts, such
as bad faith denials of contracts, theft of trade secrets, inter-
ference with economic advantage, and other acts of unfair competi-
tion; business fraud; corporate dissolutions and disputes among
shareholders of closely held corporations; partnership dissolutions
and disputes among partners; real estate litigation, including
breach of purchase and sale contracts and development agreements,
industrial, commercial, and high-rise lease cases, shopping center
litigation, and title insurance; entertainment industry litigation,
including film, television, syndication, music, recording, merchan-
dising, licensing, and royalties; franchise disputes; copyright and
trademark matters; garment industry disputes; securities litiga-
tion, including federal securities laws, state blue sky laws,
commodities laws, and regulatory matters before the SEC; corporate
takeovers and proxy contests; RICO; state and federal antitrust
litigation; labor and employment disputes, including wrongful
termination and covenants restricting competition; defamation
suits; construction contract disputes and construction defect
litigation; product liability; consumer fraud; legal malpractice;
family law; and trust and estate work.
BUCHALTER, NEMER, FIELDS & YOUNGER
(A Professional Corporation in California/
A Partnership in New York)
601 South Figueroa Street 333 Market Street
Suite 2500 29th Floor
Los Angeles, CA 90017-5704 San Francisco, CA 94105-2130
(213) 891-0700 (415) 227-0900
FAX: (213) 896-0400 FAX: (415) 227-0770
2029 Century Park East 50 West San Fernando St.
Suite 1500 12th Floor
Los Angeles, CA 90067-3002 San Jose, CA 95113-2413
(213) 891-0700 (408) 298-0350
FAX: (310) 551-0233 FAX: (408) 298-7683
660 Newport Center Dr. 237 Park Avenue
Suite 1400 19th Floor
Newport Beach, CA 92658-7338 New York, NY 10017
(714) 760-1121 (212) 490-8600
FAX: (714) 720-0182 FAX: (212) 490-6022
LITIGATION BRIEFS is published as a service to our
clients and friends. The articles are merely summaries of current
developments in the law and are not intended to be exhaustive
discussions. Because of their nature, they should not be relied
upon in reaching a conclusion in a particular area, and the firm is
not responsible for errors that may occur.
Copyright (C)1993 by Buchalter, Nemer, Fields & Younger.
All rights reserved.
Go to the Self Help Legal Clinic
Liberty's Educational Advocacy Forum 