What to Expect on Appeal
Frequently Asked Questions
Poor communication is one of the most common complaints from clients about their attorneys. Good communication with our clients, opposing counsel, and the courts, is one of our highest priorities. We will advise you every step of the way in your case and do our best to answer all your questions, via text messages, emails, telephone, and video conferences. And, yes, we will return your calls!
Every case is different. An appeal can take 6 months to 2 years to final decision. A writ petition is usually much faster and, in the Court of Appeal, is usually either rejected immediately, or resolved within a few weeks. Litigation in the Superior Court, including writ petitions and civil complaints, is usually much longer and can take years to resolve.
We will work with you to move your case along as quickly as possible. However, some things are out of our control, such as the caseload of the courts, how the courts are dealing with Covid-19, and tactics used by opposing counsel.
As always, we will keep you closely advised every step of the way.
The cost of litigation and appeals varies, depending on the complexity of the case, the number of parties, and the legal issues involved, and whether the case goes to trial or is resolved through settlement. We will work with you to keep you closely advised every step of the way and will talk over with you the cost of various procedures and discovery tactics. Our team will work with you, so you understand the likely cost from the beginning. Of course, sometimes unexpected events occur–for example, the opposing party may file a motion requiring your response, or the judges may ask for additional hearings or briefing. We will keep you posted so there are no surprises.
Trial counsel has worked hard to develop the theory and theme of the case. Evans Kingsbury will work with trial counsel to identify the issues to be raised in the appellate court, the significant applicable law, to develop the record on appeal, and to determine the appropriate relief on appeal. Some trial attorneys prefer to turn everything over to appellate counsel. We work with trial counsel regarding stay of trial proceedings or enforcement of judgment, where necessary.
Once the appellate court has rendered its decision, the case is often remanded to the trial court. At that point, Evans Kingsbury usually turns the case back over to trial counsel for further proceedings and can work with trial counsel on additional briefing and procedural matters in the trial court.
The first step toward starting your appeal is determining whether the trial court’s order or judgment is appealable.
Code of Civil Procedure §904.1 sets forth the orders and judgments specifically made appealable. But, keep in mind that the answer may not always be clear. For example, in a recent case in which Noreen represented the appellant, the Judgment purported to be a judgment of partition, but did not actually order partition. After extensive briefing on the issue, the Court of Appeal decided to treat the appeal as a writ and, ultimately, decided the matter in Noreen’s client’s favor. You can read more here.
While Code of Civil Procedure §904.1 sets forth the orders and judgments that are appealable, other codes may also apply to a particular case. For example: Fam.Code §2025; Prob.Code §§1300, 1301, 1302, 1302.5, 1303, 1304; Corp.Code §2000; Civil Code §1714.10 (attorney conspiracy); CCP§703.600 (exemption of property from levy); Gov.Code §946.6 (denial of petition for leave to file late claim under Tort Claims Act).)
If the order or judgment is not appealable, writ review may be necessary.
We are always happy to review the order or judgment and let you know what we think. But, you must act quickly because if you do not file a timely Notice of Appeal or writ petition, the appellate court may lose jurisdiction. Usually—but not always–the time to file in no later than 60 days after service of Notice of Entry of Judgment.
If you are pursuing relief in the Court of Appeal, we can take you through the entire process from beginning to end specifically for your case.
Generally, a Notice of Appeal is filed. The documentary record is prepared by either the appellant or the Superior Court Clerk and the transcript is prepared by the Court Reporter. Then, the appellant files an opening brief, the respondent files an opposing brief, and the appellate files a reply. The Court of Appeal holds a hearing and issues a written decision. The parties have the opportunity to seek modification or rehearing in the Court of Appeal or review by the Supreme Court. After the Court of Appeal’s decision becomes final, jurisdiction returns to the trial court.