The following is a short overview of California (and, where indicated, federal) appellate law.

The Beginning of an Appeal.

Appeals generally begin where the trial court proceedings ends. All cases begin in a trial court, and at some point the case will end in the trial court, usually with a final judgment or a dismissal. 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. The judge can even enter a final judgment that is different than the jury's verdict. But at some point, the trial court proceedings will end. And at that point, a party unhappy with the outcome—typically the losing side, but sometimes even the winning side—can appeal.

Additionally, there are some trial court orders entered before a final judgment that are themselves appealable.

An appeal typically begins with filing a notice of appeal in the trial court. The party appealing—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 the appeal.

The other side—the "respondent" in California state court or the "appellee" in federal court—can file a notice of cross-appeal if that party also believes the judgment or order in incorrect.

Briefing

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

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

The respondent or appellee then files a respondent's or answering brief. The appellee or respondent also explains the facts and the procedural history of the case (including correcting any errors the appellant made) and then argues why the trial court reached the right result and why the appellate court should not reverse.

Finally, the appellant can file a reply brief. In this brief, the appellant argues why the respondent's or appellee'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 or appellee.

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

Standards of Appellate Review

This is where things get tricky and interesting, at least to an appellate lawyer.

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 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 legal issues, like the interpretation of prior case law, or a statute, or the Constitution, and will independently decide the issue without deferring to the trial court's decision.

On an appeal after after a pre-trial dismissal (like a order granting summary judgment or sustaining a demurrer) the appellate court will usually review the decision independently. It will 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 review factual issues for "substantial evidence"; that is, with deference to the findings of the judge or jury. The court will uphold factual findings if there is any substantial evidence to support that finding. However, the appellate court reviews legal issues (like jury instructions, whether the proper procedures were followed, and whether all of the elements of the plaintiff's case were or were not met) independently. It also reviews the judge's discretionary decisions for an abuse of discretion. This includes both a substantial evidence review of the factual parts of the trial judge's ruling and an independent review of the legal parts of the trial judge's ruling.

Even if the appellate court finds errorm it will reverse a judgment only if it finds "prejudce" as well. This means that the error was reasonably likely to have changed the outcome. Thus, minor legal errors are usually not grounds for a reversal. This rule is often referred to as the "harmless error" rule.

The Appellate Panel

Appeals are decided by an appellate panel. The California Court of Appeal and federal Courts of Appeals decide 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. The California Supreme Court has seven judges, and the U.S. Supreme Court has nine justices.

Oral Argument

Once the briefing is completed, the appellate court will hear oral argument. The time between the close of briefing and oral argument varies 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 longer.

In California, parties have the right to oral argument as a matter of law. However, in federal court, this is not the case, and the Ninth Circuit 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 to 15 minutes. If the Ninth Circuit does schedule an oral argument, it usually allows the parties either 10 or 20 minutes.

Appeals are almost always decided on the written briefs, not oral argument. 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 discussed the case among themselves. In fact, one California Court of Appeal justice once remarked that he had never had an oral argument that made a difference. This might be overstating it, but probably not by much. The reason is that if an argument and legal authority is in the briefs, the judges have already read it. If not, it is too late for the parties to raise it.

The lawyers at oral argument, at least if they approach it correctly, 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 formally submitted to the appellate court for a decision.

The Appellate Opinion

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 the court has the option to "resubmit" the case and extend its 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.

The opinion will contain a discussion of the facts of the case and an analysis of the legal issues involved. The opinion will conclude with a disposition, explaining the final result. The court has several disposition options.

• It can affirm the judgment. This will leave the judgment as is, and the case is effectively over.
• It can modifiy the judgment, and then affirm as modified. For example, if the appellant argues the damages awarded are incorrect and the undisputed evidence shows that as a matter of law, the judgment should be for different and specific number instead, the appellate court can change the number and then affirm that modified opinion
• It can reverse the judgment with directions. This will undo the judgment, and the case will be sent back the the trial court, and the trial court must follow the appellate court's directions. For example, the appellate court might order a limited new trial on a particular issue. Or after a summary judgment, it might direct the trial court to enter summary adjudication on some causes of action but let the case go forward on others. Or it might reverse the judgment for one party and direct the trial court to enter judgment for the other party.
• It can reverse the judgment without directions. The trial court then continues the case from where it was before the judgment. For example, if the case has been tried, the trial judge must now start a new trial. If the case had been resolved on summary judgment, the case picks up as if the summary judgment had been denied.

Rehearing by the Appellate Court

In almost all appeals, the appeal is over once the appellate opinion is filed.

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. Importantly. 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 the Supreme 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.

With a few exceptions, the California and U.S. Supreme Courts are not required to take any particular case; they choose what cases they will decide. Both courts take a very small percentage of the cases they are requested to take. Both Supreme Courts 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, both the California and U.S. Supreme Courts are likely to take cases only where the lower courts have reached different conclusions on the same issue. They are not likely to take a case merely because they think 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. 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 details of when these are permitted are complicated. Most are denied for the simple reason that in most cases, the parties can wait under the case is over to raise their issues on appeal rather than taking a "cut in the appellate line."