Appeals & Writs.

A loss in the trial court can be devastating, but it doesn’t mean that your case is over. There are any number of mistakes that can (and do) happen in the trial court. An appeal is your opportunity—your right—to try and correct such mistakes. It’s a second chance for your case.

Prosecuting or defending an appeal requires a distinct set of skills: Whereas a trial attorney attempts to persuade a jury through oral advocacy (e.g., opening statements and witness examination), an appellate attorney attempts to persuade a panel of judges through written advocacy (i.e., a well-researched and succinct brief). An appeal, in other words, is a unique type of legal battle for a which a unique type of attorney is needed.

Decker Law is dedicated to appeals. It is our primary practice area. We handle civil, criminal, and family law appeals throughout the entire State of California—from San Diego to Los Angeles to San Francisco to Sacramento. We are also licensed to handle federal appeals in Ninth Circuit Court of Appeals (which hears federal appeals from Arizona, Alaska, California, Idaho, Hawaii, Montana, Oregon, and Washington) and the Sixth Circuit Court of Appeals (which hears federal appeals from Ohio, Kentucky, Michigan, and Tennessee).

If you are considering an appeal or if one has been filed in your case, contact Decker Law today to schedule a free consultation with an experienced appellate attorney.

 

Locations

Los Angeles

1500 Rosecrans Ave., Ste. 500
Manhattan Beach, CA 90266

 

San Diego

11622 El Camino Real, Ste. 100
San Diego, CA 92130

 

Meet the Team

  • James Decker

    FOUNDING PARTNER

  • Griffin Schindler

    SENIOR ASSOCIATE

  • Aisling Gorman

    ASSOCIATE

  • Chris Jones

    ASSOCIATE

Attorney Bios

Step-by-Step Overview of the Appellate Process

Step One: Notice of Appeal.

An appeal begins with the filing of a notice of appeal. The importance of filing this document before the applicable deadline cannot be overstated: An appellate court cannot consider an untimely appeal—even if the appeal is completely meritorious.


Step Two: Designation of Record.

Shortly after the filing of a notice of appeal, the appellant must designate the “record”—i.e., select the documents from the trial court that are relevant to the appeal. Although this may sound mundane, this is a crucial aspect of any appeal. Failing to designate the record within the appropriate time can result in automatic dismissal of the appeal.


Step Three: Briefing.

Perhaps the most important part of any appeal is the briefing (i.e., the parties’ written legal arguments). There are typically three briefs filed in an appeal:

  • Opening Brief: The appellant identifies the errors that occurred in the trial court and the legal reasons why reversal is warranted.

  • Respondent’s (or Appellee’s) Brief: The party opposing the appeal (respondent or appellee, depending on the court) responds to the arguments made in the Opening Brief.

  • Reply Brief: The appellant responds to the arguments raised in the Respondent’s Brief.


Step Four: Oral Argument.

After briefing has concluded, the appellate court will schedule oral arguments, which consists of attorneys for both sides taking turns presenting their arguments to a panel of judges (referred to as “justices” in the appellate context). Although oral argument is relatively short in duration—it lasts for a maximum of one hour—counsel must spend considerable time in preparation. The advocates must be ready to answer any question from the justices—whether it be about the record (which can be thousands of pages) or the parties’ legal contentions.

Step Five: Decision.

The appellate court issues its decision (i.e., the “opinion” of the court), which typically takes one of the following forms:

  • Affirmance: The court declares that there was no prejudicial error. The ruling from the lower court stands.

  • Modification: An appellate court has the power, in certain circumstances, to correct defects and errors with the challenged order or judgment. The appellate court can also remand the case back to the lower court with instructions to correct the defect.

  • Reversal: Upon a finding of prejudicial error, the appellate court can partially or entirely reverse the trial court order or judgment at issue on appeal.

Step Six: Petition for Rehearing.

Under certain circumstances (e.g., if the decision omits key facts or law), the losing party may consider filing a petition for rehearing, which is a request that the appellate court reconsider its decision. Filing such a petition is an important (and sometimes mandatory) step for a party considering further appellate review (i.e., Supreme Court review).

Step Seven: Remittitur.

After the decision becomes final, the case is sent back to the lower court via a document known as a “remittitur.” This concludes the appeal and, if necessary, resumes proceedings in the lower court.

If you are considering an appeal or if one has been filed in your case, contact Decker Law today to schedule a free consultation with an experienced appeals attorney.

Appealable Issues and How and When to Raise Them in a Civil Appeal (California State Law)

Civil litigation is perhaps the broadest area of law, encompassing cases ranging from real estate to defamation to personal injury to intellectual property—and much more. Even broader is the amount of appealable issues that can arise in a civil case.

Although the concept of appealing an unfavorable ruling is relatively straightforward, the mechanisms and timing for raising such challenges are complex and often vary greatly from issue to issue. Some rulings, for example, are immediately appealable; others cannot be challenged until after the case has ended; and for some rulings, a party seeking review from an appellate court must pursue a writ petition, which is similar to but distinct from an appeal.

To provide some clarification as to how and when certain rulings are subject to appellate review in California state court, we’ve provided a brief summary of some common rulings that arise in a civil appeal.

  1. Anti-SLAPP Motions: A trial court’s ruling on an anti-SLAPP motion (i.e., a special motion to strike) is immediately appealable.

  2. Discovery Orders: Obtaining appellate review of a discovery order is no easy task. There’s no right to file an immediate appeal, and waiting until the outcome is often futile. Writ petitions, therefore, are the mechanisms by which to seek review of discovery order.

  3. Temporary Restraining Order (TRO): A temporary restraining order issued in a civil case (not to be confused with a civil harassment temporary restraining order) is challengeable with a petition for writ of mandate.

  4. Motion for Preliminary Injunction: A motion for preliminary injunction, whether granted or denied, is immediately appealable. Similarly, a motion to dissolve a preliminary injunction, whether granted or denied, is immediately appealable.

  5. Petition/Motion to Compel Arbitration: Whether an order on a motion (or petition) to compel arbitration is immediately appealable depends on the ruling itself: an order denying arbitration is immediately appealable; an order compelling arbitration is not. Accordingly, those who have been unwillingly compelled into arbitration can seek appellate review by (1) filing a petition for writ of mandate, or (2) waiting until the arbitration has concluded.

  6. Motion to Appoint a Receiver: Orders appointing receivers are immediately appealable—though, notably, they are reviewed under the deferential abuse of discretion standard. As for orders denying receivership, a litigant seeking appellate review is limited to filing a petition for writ of mandate.

  7. Motion for Summary Judgment: When a motion for summary judgment ends a case, the losing party can appeal the decision. But when a motion for summary judgment is denied, the decision is not immediately appealable; the party who lost the MSJ must file a writ.

  8. Motion for Summary Adjudication: An order granting or denying a motion for summary adjudication is challengeable via a petition for writ of mandate.

  9. Demurrer: When a demurrer is sustained without leave to amend, the losing party can file an appeal. If, however, a demurrer is overruled or sustained with leave to amend, the losing party is limited to filing a petition for writ of mandate.

  10. Motion to Reclassify: An order granting or denying a motion to reclassify a matter from unlimited jurisdiction to limited jurisdiction (or vice versa) is immediately challengeable via writ petition.

  11. Motion for Attorneys’ Fees: A motion for attorneys’ fees is directly appealable. (One exception to this rule is an order granting attorneys’ fees in connection with an anti-SLAPP motion. Such orders are appealable following a final judgment.)

  12. Motion to Certify Class Action: When a motion to certify a class action is granted, the losing party can file a writ petition to challenge the court’s ruling. The denial of a motion for class certification, on the other hand, is immediately appealable.

  13. Motion to Quash (Jurisdiction): The denial of a motion to quash for lack of personal jurisdiction is challengeable via petition for writ of mandate. The granting of such a motion, on the other hand, is appealable.

If you are considering an appeal or if one has been filed in your case, contact Decker Law today to schedule a free consultation with an experienced appeals attorney.