Appellate Litigation
ABOUT APPEALS: AN INTRODUCTION
Appeals are very different from trials. For a plaintiff to prevail at trial in a civil lawsuit usually means to be awarded monetary damages, an injunction and/or declaratory relief. For a plaintiff to win a civil appeal usually means being granted a new trial, or having a judgment for monetary damages, an injunction and/or declaratory relief affirmed.
The appellate process also is very different than that of a trial. Litigation at the trial level usually focuses on the gathering and presentation of evidence, principally oral testimony, to a jury. The goal is to persuade the jury of the truth of a particular account of the facts.
Appeals, in contrast, turn on the written briefs and the oral argument of counsel. Instead of marshaling evidence to show what happened, the goal is to persuade judges (typically three) to adopt a particular view of what the law is, or what it must become.
FREQUENTLY ASKED QUESTIONS:
Q: How long do I have to begin an appeal?
A. Depending on whether you are in a California, Washington, or federal court, the time to begin an appeal typically is 30 or 60 days after the date of the order or judgement being appealed.
Q. How long does an appeal take?
A. There is no fixed amount of time. In my experience on average the time from filing the notice of appeal to decision has been 15 to 21 months.
Q. What happens if I appeal and win?
A. In a civil appeal, typically you are given the opportunity to return the trial court and have your case tried again, or if judgement was entered prior to trial, to proceed to trial for the first time. In a criminal appeal, typically a successful appeal results in a new trial or resentencing.
Q. Can I present evidence to the court of appeals that was not presented to the trial court?
A. While there are some narrow exceptions, on the whole courts of appeal will not consider any evidence that was not presented to the trial court.
Q. Is it possible to seek reversal of a judgment where the time for filing an appeal has lapsed?
A. In some cases, it may be possible to seek relief through certain post-judgment motions or petitions. An example of a case in which this might be possible is where highly significant evidence is discovered after trial that could not have been discovered prior to trial.
Randy Baker litigates appeals in Washington state, California, and the U.S. Court of Appeals for the Ninth Circuit.