Appellate FAQs

Some of the most frequently asked questions (“FAQs”) I receive about appeals and other forms of appellate court review in California state court and the Ninth Circuit (for federal appeals) are presented and answered below.

When can I appeal?

The general rule is that a party to a case may not appeal prior to entry of the final judgment disposing of all claims and the rights of all the parties to the action. In other words, you generally must wait until the case is over before you can appeal. But there are exceptions, as explained in answer to the next FAQ.

Can I get the appellate court to review a preliminary ruling?

Certain decisions are appealable even though your case is not over. They are generally defined by statute. If an interim decision is not appealable, you may be able to challenge the decision by filing a writ petition.  Writ review is discretionary, however, and most writ petitions are denied without any explanation or chance to argue to the court.  If you feel a decision of the court will keep you from getting a fair trial or otherwise put you at a disadvantage in the lawsuit, it is important to ask your lawyer about obtaining appellate review before proceeding to trial, whether by appeal or by writ petition. Depending on the circumstances, failure to seek appellate review promptly can make review at the end of the case impractical or waive your right to appellate review entirely.

How long do I have to appeal?

Deadlines to appeal are very short and vary by jurisdiction. For example, federal criminal convictions must be appealed within 10 days of the judgment. Writ petitions may be barred if your delay is unfair to the other side. Consult with your attorney about the possibility of an appeal immediately after an adverse ruling. It is critical that you file your appeal on time.

How will my appeal be different from my trial?

An appeal is decided by three judges, largely (and sometimes exclusively) on the written record of the proceedings in the trial court (the papers filed and a transcription of all relevant proceedings before the court) and written submissions from the parties called briefs. There is no jury, no trial, no witnesses, or introduction of evidence. (In extremely rare instances, new evidence may be considered on appeal.) Parties who file briefs are entitled to make an oral argument in California state court appeals (but may waive that right), but oral argument is the exception in federal appeals to the Ninth Circuit.

How long will my appeal take?

That depends on the backlog in your particular court. Appeals in California state court can take less than a year from start to finish, depending on the region of the state, but generally average around 14-16 months. Federal appeals in the Ninth Circuit can often take longer than two years to resolve.

If I win my appeal, does that mean I win my case?

In some cases, a successful appeal can result in a judgment in your favor, but the most common result of a successful appeal is that you earn a second chance to present your claim or defense in the trial court. If you are defending against an appeal by the other party, then winning usually means that the trial court’s judgment in your favor stands, except to the degree it is modified by the appellate court.

My trial was was held a long way from Oxnard. Can you handle my appeal?

Yes. Appeals usually require only a single appearance in court. Everything else is done by written briefs. With the speed of physical and electronic document delivery available today, it is quite easy for me to handle appeals anywhere in California (or, in certain federal cases, even from outside California).

Can you handle my appeal if my case wasn’t tried in California?

Yes, if your appeal is from a decision in a federal court within the Ninth Circuit. Besides being admitted to practice before all the courts of California, I am admitted to practice in the Ninth Circuit Court of Appeals, which hears appeals from federal trial courts in Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and the Northern Mariana Islands. Because federal court records are all available electronically, representing you on appeal from federal court in any of those jurisdictions can usually be done from my office without travel to the state where the federal trial court sits.

My trial lawyer is an expert in my type of case — why should I switch lawyers for the appeal?

Being a great trial lawyer who is expert in a particular area of law, such as personal injury or employment discrimination, doesn’t guarantee skill on appeal. Appeals call for an entirely different set of skills and a different approach to the case. (See details here.) If your trial lawyer is experienced and knowledgeable about appeals, then stick with your trial lawyer. But if not, you may be better off with someone who is. You need expertise in the appellate process, not necessarily expertise in the field involving your case. A good appellate lawyer will consult with your trial lawyer to ensure all the angles are covered.

Can I challenge the result of a hearing before a state administrative agency?

Yes, in most cases. The challenge is usually made by way of an administrative writ in the superior (trial) court. An adverse decision in the superior court can be appealed.

Can I appeal the result of an arbitration?

In general, no. But arbitration awards are not absolutely immune to review, and can be challenged for misconduct or a conflict of interest on the part of the arbitrator. That challenge is brought in the trial court, and an adverse decision by the trial court can then be appealed. But certain forms of arbitration (e.g., California government contracts) are subject to review. To be sure, you should consult an attorney promptly.

Can I appeal a small claims case?

In California, small claims cases can be appealed. However, instead of filing briefs and arguing in an appellate court, the superior court conducts a new trial, at which you can be represented by counsel.

Can I collect my judgment while the other side is appealing the case?

Unless the judgment is for costs only, a money judgment is enforceable pending appeal unless the appealing judgment debtor posts a bond or the presents good cause for the judgment to be stayed. However, if the decision is reversed after the judgment creditor has collected any portion of the judgment amount, that recovery under the judgment will have to be returned.