Appellate Law California - FAQs

California appellate law and procedure is complicated. As a result, many potential clients are confused when it comes to the appellate process. As a service to her San Francisco, Contra Costa County and other California clients and potential clients, appellate attorney Julie Schumer offers the following general information regarding appellate law and procedure.

What is Appellate Law?

After a decision is rendered in a civil or criminal law trial by a trial judge or jury, the party who loses has the right to have the decision reviewed by a higher court. “Appellate Law” consists of the rules and practices by which a California higher court reviews a California lower court’s decision or judgment.

Appellate law is different than other forms of litigation in the respect that there is no discovery, and the appellate record is limited to what was already presented to the trial court. No new evidence may be presented. An appeal in California is typically presented to an appellate panel that consists of three judges. An appeal is usually decided almost entirely on the written briefs that are prepared by the appellate lawyer.

Appellate attorneys become involved in a case after a “final judgment” has been issued by the trial court. Appellate attorneys may also be involved in the following:


What is an Appeal?

An appeal is the process by which a California higher court reviews the decision of a California lower trial court. The right of a party to a lawsuit to appeal an adverse legal decision is governed by the California Statutes and Rules of Court. The appeals system allows a higher court to overturn the decision of a lower court if the higher court is convinced that the lower court’s decision on a legal issue was not correct and that this error prejudiced the outcome. Anyone who has had an adverse court decision made against him or her is the party with the right to appeal. This applies to government agencies, corporations and other business entities, as well. The appealing party or the party that files an appeal is called the “Appellant.” The opposing party is referred to as the “Respondent.” It is important to keep in mind that not every lower court decision is appealable. Only “Final Judgments” are appealable to a higher court.

It is important to know that the function of an appellate court is not to correct misjudgments, or perceived unfair decisions by the trial court. The appellate court is not a second jury that redecides a verdict based on a different view of the evidence. It determines whether or not the trial court proceedings were fairly conducted and whether or not the result is reliable.

Why do I need an appellate lawyer, can’t my trial attorney handle the appeal?

The Court of Appeal in People v. Bailey (1992) 9 Cal.App.4th 1254, stated, “there is an inherent conflict when appointed trial counsel in a criminal case is also appointed to act as counsel on appeal.” In addition to the inherent conflict of interest, appellate work is a specialty area of the law that requires a unique set of skills including superior research and writing skills, and a superb understanding of the rules and procedures surrounding the filing and arguing of an appeal. After handling hundreds of appeals, appellate lawyer Julie Schumer has the necessary skill and ability to handle an appeal in a way that most trial attorneys cannot.

Why do I need a certified appellate specialist?

Hiring a certified appellate specialist can enhance your chances of prevailing on appeal. Appellate practice is a trap for the uninformed. Appeals are regularly lost for failure to comply with intricate procedural requirements. Hiring a certified appellate specialist who regularly handles appeals and writs and who knows the procedural rules of various reviewing courts, standards of review and appellate motion practice can result in cost efficiency as well for there is no attorney time spent becoming familiar with these rules.

Should I appeal my conviction?

Anyone convicted of a felony in California is entitled to appeal his or her conviction and is entitled to a free copy of the record on appeal. The record on appeal consists of the contents of the Superior Court file (the Clerk's Transcript) and a verbatim record of the oral proceedings at the original trial (the Reporter's Transcript). The real question may be how to finance an appeal. Often the family of a loved one who has been convicted of a crime is at a loss to determine if their continued economic involvement in the case is a wise one. Very few criminal convictions are reversed in California annually and the cost of a private appeal can be high. Julie Schumer can help a family determine if they want to continue to invest in the case by doing a preliminary evaluation of the potential issues and their strength, as certain issues have a greater chance of prevailing than others.

If a defendant cannot afford to hire a private attorney for an appeal, he or she may be entitled to appointed counsel at no cost. A defendant in this position should consult his trial lawyer for information on the process of obtaining appointed counsel.

What are the steps in appealing your case?

An appeal is a multi-step process that can take months or years to complete. Julie Schumer will consult with you, your trial counsel, review his file if necessary and thoroughly review the trial court transcripts. Once the complete record on appeal is on file at the Court of Appeal, the Opening Brief is prepared and filed. This is the key document in an appeal and sets forth succinctly yet persuasively a procedural and factual summary of the case along with carefully selected issues developed in arguments supported by appropriate legal authority. The prosecution will then have a chance to file a Respondent's Brief, answering the arguments set forth in the Opening Brief. After reviewing the Respondent's Brief, Julie will prepare and file a Reply Brief. After briefing is completed, the parties may ask for oral argument. If such argument takes place, it is in front of the three judge panel that will decide the case. Once the case is finally submitted to the appellate court, a decision follows within 90 days. Should the decision be adverse to the appellant, a petition for rehearing may be filed if certain requirements are met. In addition, within a certain time frame, the appellant may file a petition for review in the California Supreme Court requesting that higher court to consider the case. This petition must be filed in order to exhaust all state remedies, a requirement before proceeding to federal court. Once all state remedies are exhausted, an appellant whose case presents issues implicating the federal constitution may file a federal habeas petition in federal district court, continuing to press his or her case.

Can I file a writ?

Your case may present the potential for writ relief. A writ proceeding is separate from an appeal and is essentially a second way to attack your conviction if your case presents the basis for one. Most commonly, writs are used in conjunction with an appeal as a vehicle to present to the Court of Appeal any arguments based on information outside the record on appeal. This is the way to get evidence outside the appellate record in front of the Court of Appeal. A post-conviction writ can be used to establish issues that affected the defendant's rights to be properly and fairly tried, including but not limited to:


The conduct of trial counsel and its impact on a fair and proper trial are related to ineffective assistance of counsel. The issues most commonly addressed in a writ in connection with such a claim may include:


 

If you or someone you know in San Francisco, California, Contra Costa County or anywhere in California needs the assistance of an experienced appellate lawyer then contact the Law Offices of Julie Schumer to schedule a consultation with a certified legal specialist in appellate law. She can be reached at 866-295-4366 or via her contact form on the contact page.