What is Appellate Law?

The following is a short overview of California appellate law (and, where indicated, Ninth Circuit appellate law). Each phase of the appeal can involve numerous and complex issues or can be concluded quite simply. The following overview is meant to be just that — an overview. It is certainly not meant to be an exhaustive or thorough discussion of these issues.

Beginnings of an Appeal

All cases begin in a trial court, and at some point the case will end in the trial court. The trial judge could dismiss the case on the pleadings early in the litigation or dismiss it after a summary judgment motion well into the litigation. The case could be tried before the judge or a jury and a final judgment could be entered after a full trial. And the trial judge can sometimes enter a judgment that is different than the jury's verdict. But at some point, the proceedings in the trial court will end. And at that point, a party unhappy with the outcome — typically the losing side, but sometimes even the winning side — can appeal.

An appeal typically begins with filing a notice of appeal in the trial court. The party appealing -- known as the "appellant" — must also designate an appellate record. The appellate record consists of materials from the trial court that the appellant would like to present to the appellate court and use in appeal.


In a typical appeal, the parties will file a total of three briefs with the court.

The appellant begins with an opening brief. The appellant's opening brief should neutrally explain the facts and procedural history of the case, and then explain what went wrong in the trial court and why the appellate court should reverse.

The non-appealing party — usually called the "appellee" or "respondent" — then files a responsive brief. In this brief, the appellee or respondent also neutrally explains the facts and the procedural history of the case and then argues why the trial court reached the right result and why the appellate court should not reverse.

Finally, the appellate can file a reply brief. In this brief, the appellant can argue why the respondent's claims are wrong. However, the appellant may not make new legal argument in the reply brief; the appellate may only "reply" to the respondent.

All briefs must contain proper citations to legal authorities (cases, statutes, etc.) and proper citations to the appellate record.

Standards of Appellate Review

An appeal is not a new trial. Appellate courts do not retry cases or hear new evidence. In most cases, appellate courts will not even hear new legal arguments. Instead, appellate courts review what occurred in the trial court to see if the proper procedures were followed and the proper law was applied. Because of the limited nature of this review, the issues properly raised on appeal are significantly different from those that are raised at trial

The appellate court will usually defer to the trial court or jury on factual issues. However, the appellate court has the final word on what the law is. On issues of law — for example, the interpretation of prior case law, or a statute, or the Constitution — the appellate court will not defer to the trial court but will instead independently decide the issue.

On an appeal after after a pre-trial dismissal — for example, after a summary judgment motion or a demurrer — the appellate court will usually review the materials and independently decide whether the case should have been dismissed or whether it should have been allowed to go to trial.

On an appeal from a judgment after a trial, the appellate court will reverse the judgment only if it finds the trial court committed legal errors that were prejudicial — that is, likely to have changed the outcome — during the trial. Thus, minor legal errors are usually not grounds for a reversal. This rule is often referred to as the "harmless error" rule.

Appellate Panel and Oral Argument

Appeals are decided by an appellate panel. The California Court of Appeal and the Ninth Circuit decides cases in three-judge panels. These judges are chosen randomly from the pool of available appellate judges on the courts. In appeals to state supreme courts and the U.S. Supreme Court, the entire court usually hears the appeal. State supreme courts typically have seven justices, and the U.S. Supreme Court has nine justices.

Once the briefing is completed, the appellate court will hear oral argument. The time between the close of briefing and oral argument varies tremendously between different courts. The California Courts of Appeal typically will set oral argument a few months after the close of briefing; the Ninth Circuit often takes well over a year to set oral argument. The Ninth Circuit, however, often decides cases without oral argument.

The oral argument in the California Court of Appeal is at most 30 minutes and is usually about 5 - 15 minutes. The Ninth Circuit usually sets oral argument at 10 minutes, but sometimes 20 minutes. By the time of oral argument, the judges on most appellate courts will have read the briefs, had at least one of their research attorneys or clerks prepare a bench memorandum discussing the issues, and often discussed it among themselves.

The lawyers at oral argument usually focus on just the most important aspects of their case, and the judges will frequently ask questions. This is not the time to reargue the entire case.

At the close of oral argument the case is submitted to the appellate court for a decision.


The appellate panel will usually issue a written opinion explaining why it reached the decision that it did. Like the time between briefing and oral argument, the time between oral argument and the written decision varies considerably between different courts. The California Court of Appeal has 90 days to issue an opinion, although they have the option to "resubmit" the case and extend their time by 90 days. The Ninth Circuit has no deadline, and the time varies considerably.

If the appellate court deems it appropriate, the written opinion will be published in the official reports and will be binding authority for litigants in the future.

Rehearing by the Appellate Court

Any party dissatisfied with the opinion has a short time to ask the appellate court to rehear the case. (After this time expires, the appellate court loses jurisdiction to rehear the case.) Needless to say, these petitions are almost never granted. If the arguments have already been made and considered, the court is not likely to consider them again. And if the arguments have not already been made, the court is not likely to consider new argument.

However, in very rare cases, the appellate court may have misunderstood the law or the applicable facts of the case. (Note: this is not the same as understanding but disagreeing with a party's claims about the law and the facts of the case.) In such cases, the appellate court has discretion to rehear the case.

Review by a Higher Court

A party who is dissatisfied with the results on appeal can also petition a higher appellate court to review the case. In California, this would be the California Supreme Court, and in the Ninth Circuit, it is the U.S. Supreme Court. (If a federal issue is involved, the U.S. Supreme Court can take cases from the California courts.)

With a few exceptions (like death penalty appeals), the California and U.S. Supreme Courts are not required to take any particular case; they choose what cases they will decide. The courts generally do not view themselves as simply providing a second layer of appellate review. Instead, they view themselves as insuring uniformity in the law in important issues. As a result, the California and U.S. Supreme Courts are likely to take cases where the lower courts have reached different conclusions on the same issue. They are not likely to take a case merely because the appellate court reached the wrong result.

Consequently, the petition asking the higher court to take review must be carefully drafted with this in mind.

Interlocutory Appeals and Appellate Writs

As discussed above, most appeals involve cases that have been concluded in the trial court. However, a party can sometimes "appeal" from a trial court order before the case is over. In the Ninth Circuit, these are called interlocutory appeals. In the California Court of Appeal, these are technically not appeals at all, but are original proceedings, called writ petitions, asking the Court of Appeal to issue an order (or writ) directing the trial court to modify one of its orders. The circumstances in which a party can file an interlocutory appeal or a petition for an appellate writ vary from court to court and are often very technical.