Ford Law PLC

Step 1 – During trial proceedings, before an appeal is contemplated

 

Most clients and even some trial attorneys are not mindful of the fact that any successful appeal has roots in the trial. During proceedings in the trial court, the parties present evidence and testimony, which form the factual underpinnings of a jury’s or court’s decision.

 

In contrast, no new evidence is presented or testimony taken in an appeal. The factual underpinnings of an appellate court’s decision all are found in the record of trial proceedings. Therefore, making proper objections and arguing appropriate legal theories at trial not only advance the client’s cause in that venue, but, if made with appellate strategy in mind, can help create a record that could form the basis for a successful appeal, or if the other party appeals, a successful response to that appeal.
 

Ford Law offers counseling in appellate practice and procedure and can help you or your trial attorney strategize appropriately during trial so that if an appeal is necessary or your opponent appeals a decision in your favor, you will be ready for litigation in the appellate court. 

 

Step 2 – Review of the trial record to determine appealability

 

As noted in Step 1, the trial court record – that is, the documents filed and testimony taken during trial proceedings – becomes fixed once the trial ends.

 

If you or your trial attorney believes that the trial court judge made an error of legal consequence, an appropriate first step is to have an appellate attorney review the trial court record to determine whether an appeal may be worthwhile.

 

The appellate attorney is not invested in the trial strategies or tactics and brings a fresh eye to the case. Appellate counsel can offer the important service of independently advising the client on whether taking a case on appeal makes sense. During this stage appellate counsel also may develop a strategy to best navigate the appellate court’s unique procedural rules and organize the trial court documents into an effective record on appeal.

 

Ford Law can help you through this process and will offer you practical, realistic advice on the potential merits of your case on appeal and what documentation will need to be assembled to best present your case to a reviewing court.

 

Step 3 – File the notice of appeal

 

If during Step 2 you considered counsel’s advice and decided to proceed with your appeal, your appellate lawyer will file notice of appeal. The documents itself is quite brief and relatively simple, but filing a notice of appeal carries important legal consequences.

 

First, it is crucial that the notice be filed within the time allotted by court rules, which, depending on the court, can vary anywhere from 10 to 60 days. In Arizona and in the U.S. Court of Appeals for the Ninth Circuit, the time limit is 30 days.

 

Failure to file notice of appeal timely dooms your appeal, because the appellate court loses jurisdiction to take your case once the deadline has passed. Thus, timely filing of notice of appeal is a must.

 

Ford Law can help assure that you notice is timely filed. In California cases, the deadline is not always clear because of the way procedural rules are written, so the assistance of appellate counsel in this process is especially important in that state.

 

Step 4 – Designate the record and file related papers

 

Assuming you timely filed your notice of appeal as outlined in Step 3, what will follow is a flurry of activity in your appellate lawyer’s office. Your attorney must determine which portions of the record – i.e. briefs or affidavits filed in the trial court, as well as transcripts of oral proceedings in the courtroom – to include in the record appeal to best present your case.

 

Your appellate counsel may discuss with you the two types of transcripts that typically are filed with an appeal:

• Clerk’s transcript – the collection of all written documents filed during the trial court process that have been designated as part of the record on appeal; and

• Reporter’s transcript – the collection of all designated transcript(s) from all relevant trial court hearing(s) and day(s) of trial.

Depending on the rules of the appellate venue, one or both of these transcripts may be assembled by your attorney into document known as an appendix or excerpt of record.[1]

 

Your cooperation with appellate counsel is crucial at this stage to make sure counsel has the opportunity to review all relevant documents that may go into the appellate record. Deadlines for the filing of a notice designating the record on appeal are very short in most appellate courts.

 

Once the record-designation process is complete, appellate counsel will file the notice designating the record on appeal. Counsel also may file other documents at this time as required by court rules, including notices regarding related appellate cases or regarding persons or entities that are not part of your case but may have a financial interest in it.

 

Ford Law has the experience to assist you through this process and ensure an appropriate designation of the record and any other required notices are timely filed with the court. If your case is to the California Court of Appeal, Mr. Ford also will advise you regarding whether to have the court clerk or his office prepare the written record.

 

Step 5 – Drafting the brief

 

Once the required initial documents have been filed as noted in Step 4, some period of time will pass before the appellate court issues a briefing schedule, which sets the deadlines for filing the appellant’s and his/her opponent’s briefs.

 

In some courts, such as the California Court of Appeal’s Second District in Los Angeles, this waiting period be quite lengthy given the court’s busy docket. A primary reason for such delays is that preparation of transcripts of oral proceedings can become quite time-consuming (see Step 4).

 

The briefs filed in an appeal include

• Appellant’s opening brief – the party taking the appeal makes his/her case to the court

• Appellee’s (or respondent’s) brief – the party who won at trial argues that the appellate judges should “affirm,” or allow to stand, the trial court’s ruling

• Reply brief – the appellant is given the opportunity to respond to points raised by the appellee/respondent. Reply briefs usually are optional, but rarely does a party decline to take advantage of the option

 

You may find during the briefing stage that you do not hear much from your lawyer. Do not be concerned, because she or he will be focused on preparing your brief, which takes considerable concentration.

 

Ford Law is very experienced at drafting briefs with the sophistication needed to persuade appellate judges.

 

Step 6 – Oral argument

 

Once all the briefs described in Step 5 have been submitted to the appellate court, it typically will schedule oral argument.

 

Oral argument is quite unlike arguments made to trial court. First, they are brief; rarely does a party have more that 15 minutes before the appellate panel, and that includes time for rebuttal to the other party’s arguments.

 

Second, oral argument typically is highly technical and devoid of courtroom flair or theatrics. Most of the time, the client does not even attend oral argument.

 

From the court’s perspective, oral argument aids in clarifying or examining the logic of issues raised and legal arguments made in the briefs. From the attorney’s perspective, oral argument offers an opportunity to distill a 40-page brief into two or three key issues, correct misimpressions of law or fact, answer any questions the court may have, and connect personally with the judges in hope of motivating them to rule for his or her client.[2]

 

Ford Law offers experienced advocacy before appellate judges.

 

Step 7 – Receive and review the appellate court’s opinion

 

Once oral argument, described in Step 6, concludes, the appellate panel of judges will render a decision. This process can take a few months or, sometimes in federal courts, years. In California appellate cases, some months may pass between the court’s rendering its decision and its issuance of a “remittitur,” which transfers jurisdiction back to the trial court.

 

If you appealed your case and won, there may be more to do after the appellate court hands down its decision. It is important to understand that a win on appeal is not necessarily an automatic conclusion of the case in your favor. Often appellate courts remand cases, i.e. send them back, to the trial court for further proceedings.

 

Often, the appellate decision will direct the trail court to change its ruling or issue a new ruling. Or, for example, if the appellate court rules that one party must pay the other party’s attorney fees, proceedings in trial court to determine the amount of such fees.

 

Ford Law can assist you in determining your next step after an appeal has concluded.

 

 

[1] Phillip Hall & Pamela P. Peterson, 1A Arizona Appellate Handbook § 2.2 (5th ed. 2010) (quoting Ruggero J. Aldisert, Winning on Appeal: Better Briefs & Oral Argument 29-31 (rev. 1st ed. 1996).

 

[2] In California, the appellant may elect between paying the clerk of the trial court prepare the record to be submitted to the Court of Appeal, or allowing the attorney’s office to prepare the record of written documents filed during trial proceedings. In either case, preparation of transcripts of the oral proceedings in the trial court for use by the appellate court may take a significant amount of time and may require payment of a not insignificant amount of money to the court reporter.