Appellate
FAQs
How Do I Begin
an Appeal?
How Carico Law Conducts
an Appeal
What Are the Deadlines
for
Filing an Appeal?
Video FAQs
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Frequently Asked Questions
How an Appeal Begins
It is normal for potential clients to have
different expectations or ideas attached to
the first contact with an attorney. However, the bottom line is usually that
they want to
know if the attorney has the necessary skills to handle the case and a commitment
to
their cause. Good attorneys are certainly open to questions about their experience
and skill in a particular area of law, and, it should be a part of any client’s
due diligence
when selecting appellate counsel. As in any relationship, commitment takes place
in the
context of understanding the wants and needs of each party to the relationship
and
whether they can be fulfilled.
How Do I start an Appeal?
As a potential client who is considering appealing a judgement
or verdict, one of the most important concepts to understand is
that this next step is very different than what you may have experienced
in trial court. Because the trial court rulings, records and evidence
are critical items for an appellate attorney to consider, it is
not practical to attempt to discuss the issues with just a phone
consultation.
There are also very strict deadlines involved with all appellate
filings, and adhering to those rules is the first step in successfully
filing an appeal. In general, criminal felony, juvenile and civil
appeals must be filed within 60 days of the written judgment or
order appealed from in California state court. The filing deadlines
in federal cases are shorter. See the Deadlines
Section for an expanded explanation of State and Federal appellate filing
deadlines.
When preparing to approach or discuss appealing your case, there
are several key points David has developed for clients to prepare
before he conducts an intake interview:
• take the time to prepare a written list of witnesses from the trial,
and potential witnesses who either were not interviewed or did not testify:
• a chronology of events;
• a list of issues from
the case;
• a copy of the [adverse] ruling, and any important motions and other documents
in the client's possession that were presented at trial
Once David has reviewed these documents, he’ll have a better
idea of the issues that should be explored in conversations with
the client and/or trial attorney. He will also have
a better idea at that point about the records needed for review, any possible
new investigation that remains to be done, and the experts he might need
to consult.
Will the attorney be able to tell me what my chances are
after reviewing my case?
One important practice David makes when potential clients ask the
inevitable question, “what are my chances?” is to make the distinction between
discussing an appellant’s “chances”
in prevailing in an appeal versus his (and ALL attorneys’)
ethical requirement of never promising a result. The fact is, there
is no such thing as a guaranteed result, no matter how strong a
case might appear, no matter how many errors the trial court or
jury may have made, or other problems that may have occurred during
trial.
David does not engage in “drive by” quotes, or
purely speculative possibilities. It is not David’s
practice to quickly discuss a case over the phone with the expectation
that he can render an opinion on the merits of the case from just
that call. What he does offer is the ability to thoroughly and
exhaustively review your case, from the initial incidents through
the conclusion of the trial and findings. He finds it usually takes
several conversations, written input from the client, and a review
of pertinent records before he is able to offer a reasoned opinion
about the strengths of the issues on that case. In other words,
the purpose of an intake interview is a multiple session process
to help him guide a client into determining the strengths of pursuing
an appeal– NOT to answer if the appeal can be “won.”
Can I submit new evidence in my appeal?
As the introduction to this web site stated, in California–
less than 1 in 5 civil judgements, and 1 in 8 criminal verdicts
were reversed on appeal– and those statistics are based on
the cases actually heard by the Court, not filed.
One of the main reasons for that statistic is that the Court of
Appeal does not weigh the evidence heard by the trial court or,
with very rare exceptions, consider new evidence.
For example, if the trial jury believed the evidence that your
shirt was white, the Court of Appeal will not consider a [new]
argument that it was actually gray. The Court’s only job
is to review whether the law was correctly applied to what the
trial court considered to be the facts and whether proper procedures
were followed. An appeal is not an opportunity for a second trial.
That said, it is not impossible for an appeal to challenge the
evidence that was considered at trial. The Court of Appeal does
have authority to consider whether certain evidence that was excluded
should have been admitted, and whether evidence that was admitted
should have been excluded.
In addition, the Court of Appeal can determine whether the evidence
was sufficient to support a trial court outcome. However, that
is a large hurdle to overcome – in
general, an appeals court will uphold a decision based on facts if there is any
evidence in the trial record that supports it, even if the appellate court itself
might have decided otherwise.
This is why having a seasoned appellate attorney is crucial in exploring the
various Standards of Review,
and, if there is sufficient cause to pursue an appeal, plan a successful course
of action that will result in the Court hearing the case–
and, hopefully ruling in your favor.
What happens when I file an appeal?
After notice of appeal has been submitted to the Court, the parties
to an appeal then submit written briefs to the Court of Appeal,
along with a copy of the clerk's and reporter’s transcripts and sometimes the exhibits that were used during
trial. Oral arguments may be scheduled, although many attorneys waive this right.
David’s practice is to always defend his clients’ right to those
arguments, as it’s literally the only opportunity to actually address the
Court in person.
Generally, the Court’s staff of internal lawyers, known as Law Clerks (a
very different position than Clerk of the Court), read the briefs, perform legal
research on the issues briefed, and present the justices with a rough draft of
an opinion. This becomes the basis for the justices’ deliberations, and
ultimately, a decision. Although most appellate courts will have a “pre-decision”
in place by the time oral arguments are scheduled, it can be negatively
interpreted when an attorney waives that right.
Although most decisions are settled before the point of oral arguments,
there is always the rare possibility that a compelling oral presentation
might cause the Court to reconsider a position. The oral arguments
are not long multi-hour events such as trial closings, and tend
to focus on legal issues, or arguments of law.
Review by the Court of Appeal of a judgement or conviction is similar
to watching a sporting event, using ‘instant replay’
to search for errors made by the referees. If the referees made
a lot of errors in a close event, you begin to consider that their
mistakes materially changed the final results. But– even
if the refs committed a lot of errors, the final score can sometimes
be so one-sided, that you could reasonably conclude that the mistakes
wouldn’t have affected the outcome. The panel of justices
in the Court of Appeal are looking for errors made by the trial
court which may have demonstrably changed the verdict, and will
dismiss "harmless errors," which [they] believe did not
have an effect. The Court will not consider mistakes of "trial
strategy", which is applied to the attorneys of either side;
using the sports analogy above, if a team coach [either side’s
attorney] chose a play that didn’t work, he isn’t allowed
to ask the referee to run the play over.
What’s the difference between
a writ and an appeal? Should I consider a writ?
A “writ” is essentially an order from a higher court ordering a lower
court to do something. Writs provide a process for review of trial court rulings
by the Court of Appeal that are not immediately appealable. An appellant who
is seeking a writ does so by means of a “petition to the Court”.
Denials of writs usually take a summary form – instead of issuing a written
opinion, as is done with an appeal, a writ can be denied with a mere notice or
equivalent. The petitioner seeking the writ is often left to guess or ponder
at the reasoning of the Court of Appeal. And, the petitioner has no right to
oral argument before summary denial by the Court. The upshot of pursuing a writ
is that the whole process is much faster than an appeal– decisions can
be rendered in days rather than weeks or months.
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