How Do I Begin
How Carico Law Conducts
What Are the Deadlines
Filing an Appeal?
Frequently Asked Questions
Please note that this section
is for general informational
purposes only regarding the way appeals are created by attorneys
and heard by the courts. For questions regarding specific issues
on your case, please contact David Carico.
What is the structure of the Court of
Appeal in California?
There are six separate districts of the Court of Appeal in
California. In four of the six districts, there are multiple
divisions. Which District Court and division an appeal is
heard in depends upon the county in which the case was heard
at the trial court level. When you file your notice of appeal
in the trial court, check to see what division of the
Court of Appeal you are in. The California
Courts website has a list of the various
districts and divisions.
Are all courts the same, or do
they have local rules everyone must follow?
It is important to note that the practices and procedures
differ by appellate court and county if the appeal is to
a superior court appellate department, or a district court
of appeal, so check the local rules of court or the practices
and operating procedures of the court. For example, different
appellate courts have different local rules, written and
unwritten, regarding when a party must request transfer of
exhibits to the court, or the amount of time given the attorneys
at oral argument. If you do not know the answer to a question,
call the clerk’s office at the Court of
Appeal and ask, or contact an appellate attorney. You should
also read the California Rules of Court respecting appeals
thoroughly before embarking on handling an appeal. The only
jurisdictional deadline is the filing of the notice of appeal,
but the appellate court can dismiss the appeal if other deadlines
are not met.
How can I review the status of
If you know the superior court or appellate court case number,
you can look up the
case online and review the docket in any California state case
or federal appellate
The State of California runs its own web site to obtain case
Federal Case Info may be found here:
How many justices are on the Court
Three justices compose the “panel” of justices
that will hear the appeal in the District
Court of Appeal. There are seven justices who hear the case
in the California Supreme
Court. A party must convince a “majority” of
the members of a panel to prevail on appeal,
two in the Court of Appeal and four in the Supreme Court.
How does an appeal begin?
In felony criminal cases in California state court, the filing
of the notice of appeal informs
the court clerk to begin preparing a clerk’s transcript
(minutes of the court, motions,
instructions, recorded statements played in court but not reported
by the reporter, the
judgment), and notice is given to the court reporter’s
to prepare the reporters transcript.
A criminal defendant, regardless of whether his counsel was
appointed or retained, is entitled to one free copy of the
reporter’s transcript. In misdemeanor appeals, the appellant
must prepare a proposed statement on appeal containing a statement
of the issues and the record the appellant intends to rely
upon, whether a reporter’s transcript is requested, and
any additional facts the attorney wants in the record. The
respondent files proposed additions and corrections to the
record, and the trial judge settles the record. It is usually
easier and more expedient for the attorneys to get together
and prepare a stipulated final statement rather than rely upon
the judge to do it for them.
The appellant in a civil case must pay the court reporters
directly for a transcript of
relevant hearings, unless the appeal proceeds by way of a stipulated
parties also must pay for the clerk’s transcript unless
they agree upon an appendix in
lieu of a clerk’s transcript. If on review of the clerk’s
transcript or appendix, it becomes
clear that one or more documents is omitted from the clerk’s
transcript, or a hearing
necessary to the appeal is missing from the reporter’s
transcript, the appellant should
file a motion to augment the record on appeal presented to
the presiding justice. If the
missing record is a document from the clerk’s transcript,
and the document is considered
part of the normal record on appeal, the attorney should send
a letter to the superior
court notifying them of the missing record and requesting that
it be prepared, certified,
and sent to the reviewing court. (Cal. Rules of Court, rule
8.155(b).) A copy of the letter
should be served on the Clerk of the Court of Appeal as well.
Service of the letter on the
Court of Appeal suspends the briefing schedule for the Appellant’s
Opening Brief until
the missing record is filed.
What are the deadlines for filing
appeals after a judgement or verdict?
The filing of a notice of appeal begins the appellate
process. In criminal and juvenile
cases in California State Court, the notice of appeal must
be filed within 60 days of the
judgment. Cal. Rules of Court, rules 8.308(a), 8.400(c).
In civil cases, the notice of
appeal must be filed on or before the earliest of 60 days
after the superior court clerk
mails or a party serves on the appealing party the "Notice
of Entry" of judgment or a file
stamped copy of the judgment, or no later than 180 days after
entry of judgment.
Cal. Rules of Court, rule 8.104(a)." If any party to
a civil case serves and files a valid
notice of intention to move for new trial, motion to vacate
the judgment, motion for
judgment notwithstanding the verdict, or motion to reconsider
an appealable order,
the time for filing the notice of appeal is extended until
the earliest of 30 days after the
clerk mails or a party serves an order denying the motion
or a notice of entry of the
order, or 180 days after entry of judgment. In civil cases
in federal court, the notice of
appeal must normally be filed within 30 days of the judgment
or order appealed.
Federal Rule App. Proc. , rule 4. In criminal cases, the
notice of appeal must be filed
within 10 days of the entry of judgment or the order being
The notice of appeal must be timely filed for the appellate
court to have jurisdiction to
hear the case. Check the rules of court and local rules of
the appellate court to determine
where the notice of appeal is filed and for the required
contents of the notice of appeal.
The opening brief on appeal is due thirty days after the
filing of the record in a civil
case, and forty-five days in a criminal case. In the Ninth
Cicuit, the court will establish a briefing schedule for
all the parties involved. One or more extensions of time
days may be granted by the court to file the opening brief
upon a showing of good
cause. It is usually helpful in establishing cause to state
something case specific to your
case as a reason for needing more time rather than relying
upon press of business as
the reason. In the Ninth Circuit, press of business is
The parties in civil cases may stipulate to an extension
of time up to 60 days. It is expected that a stipulation
will be sought first from opposing counsel in civil cases
a motion to extend time is made to the appellate court. In
criminal cases, application is
made directly to the court. No stipulations are allowed in
the California Supreme Court
to extend time. The motion is made to the attention of the
Presiding Justice. The
California Court of Appeal will send written notice of its
rulings on procedural motions to
counsel of record. The Ninth Circuit has different practices
and procedures so check the
Ninth Circuit Court Rules.
Don’t necessarily count upon the Ninth Circuit to mail
you a ruling, and don’t rely upon solely upon what
the clerk tells you when you call to check on the motion,
check the Federal
website (PACER) to see if the court has made a ruling.
A petition for rehearing in the Ninth Circuit court must
be filed within 14 days.
How are appeals filed with the
The briefs must follow the rules of court or circuit court
rules in terms of formatting and
content. Check the examples in the “Sample Briefs” section
of this website if you do
not know what the brief is supposed to look like and contain.
The appellant files what is
known as the “Appellant’s Opening Brief” in
the California state courts, or the “Brief of Appellant”
in the Ninth Circuit.
The respondent then has 30 days to file its “Respondent’s
Brief.” The opening brief and
respondent’s brief are mandatory briefs. The appellant
may also file an “Appellant’s
Reply Brief” which is a discretionary brief. In practice,
the appellant always files a reply
brief and it is a red flag to the court and research staff
that the attorney is inexperienced
in appeals if he or she fails to file one. Again, consult the
rules of court or call the
appellate court clerk for the number of copies to serve on
the court. Include an extra
copy for yourself and a postage prepaid envelope for yourself
for a conform copy
happens after an appeal is accepted by the court?
Once the California Appellate Court determines how it tentatively
wants to rule in any
given case, it will send out a notice that the case is ready
for argument and solicit the
attorneys’ opinions whether they would like to orally
argue the case before the court.
My experience in misdemeanor appeals is that the court does
not know how it is going
to rule at the time of oral argument and wants the attorneys
to help them determine
how they will rule.
In California Court of Appeal cases, on the other hand, the
justices have a tentative
opinion in front of them during oral argument and the oral
argument functions more like
a petition for rehearing. In the United States Court of Appeal
for the Ninth Circuit, the
court may issue an opinion without oral argument if it determines
the issues are
adequately covered in the briefs.
oral arguments a part of the process, or does the court just
read the briefs and issue a decision?
Although the appellate court rarely changes its mind at oral
argument, unlike many of
my colleagues, I rarely waive oral argument. I think that
it reflects disinterest in the
case to waive oral argument. I know of appellate justices
who share this opinion.
Additionally, you never know when oral argument will make
a difference and there are
surprises. On occasion, at oral argument the court will ask
for supplemental briefing on
an issue that neither of the parties briefed. It is also
fun to engage with the justices so
why pass up the opportunity?
If you are an attorney preparing a case for oral argument,
you should begin your review
in enough time so that you can send a letter to the appellate
court and the opposing
party if by chance you discover any new case authority bearing
on the issues in the
briefs. The appellate court will only consider letters citing
to new authority that was decided after your final brief
was submitted in the court. If you missed an important
case during the briefing process which is dispositive of
the issue on appeal and you did
not cite the case in your briefs, fax the case to opposing
counsel, bring it to the
argument, and ask the court for leave to file a supplemental
brief on the case
At oral argument, the presiding justice will ask the parties
for time estimates. Attorneys
rarely stick to their estimates in the Court of Appeal, and
usually give an estimate that is
lower than the time they actually need. Attorneys underestimate
their time in part due
to the recognition that justices decide the cases on the
briefs and disfavor oral argument
so everyone pretends it is going to be short. If you announce
that you want longer than
fifteen minutes (even though the rules of court allow 30
minutes in the Court of Appeal)
be prepared to get a quizzical look from the PJ. The presiding
justice at the outset of
argument will usually indicate to the attorneys present that
they have read the briefs
and are familiar with the issues, and to use argument to
highlight one or two salient
The degree to which the court enforces the time estimates
at oral argument depends
upon the length of the court’s calendar, the court’s
interest level in the case, and the
presiding justice’s attitude towards attorneys who
exceed the time estimate. However,
once the court indicates to an attorney that he has exceeded
the time estimate, there
is no argument and the attorney must sit down.
How much time does the court typically need to
decide a case?
After oral argument, the case is submitted for decision. The court has
90 days in
California to render a decision after the cause is submitted. An opinion
my or may not
be published-- almost 95 percent of all opinions are never published.
What happens if the court does
not find for my appeal? Is there any recourse?
Once the opinion is filed a party has 15 days in which to
file a petition for rehearing if
he or she feels the court has erred in ruling on an issue.
It does happen that the Court
of Appeal fails to rule on an issue and a party may want
rehearing so the court issues
a ruling. You must correct factual errors made by the Court
of Appeal in a petition for
rehearing in order to raise the claim in a petition for review
to the California Supreme
Court. The Court of Appeal will usually quickly rule on a
petition for rehearing, and once
again it takes the vote of two justices to grant rehearing.
If rehearing is granted, the
court may or may not allow the parties to submit additional
briefing or reargue the case.
The court may also grant rehearing and simply correct the
opinion if the error in the
opinion is ministerial or of little consequence to the final
Can the case be heard by the Supreme
If the appellate court denies rehearing, the party has the
option of filing a petition for
review in the California Supreme Court. These petitions are
known as “discretionary
petitions” because the court has discretion whether
to review a case or not. The
California Supreme Court will review a case when there are
conflicting decisions in the
Court of Appeal and the court wants to settle the dispute,
or the appeal presents an
important question of law which the court wants to decide.
How does the Federal Court relate
to the state Court of Appeal?
If the California Supreme Court denies review, that is the
end of the road unless a
federal question is presented. If the California Supreme
Court interprets federal law
(the Constitution, Treaties, or statutes) in its opinion,
the United States Supreme Court
may have a different interpretation and will accept the case
on petition for writ of
certiorari. It takes the votes of four out of the nine U.S.
Supreme Court justices to
grant a writ of certiorari.