Appeals and Writs

An appeal is when someone who loses a case in a trial court asks a higher court (the appellate court) to review the trial court’s decision.
In almost all cases, the appellate court ONLY looks at two things:
• Whether a LEGAL mistake was made in the trial court; AND.
• Whether this mistake changed the final decision (called the “judgment”) in the case.
An appeal is NOT:
• A new trial with witnesses or a jury;
• A chance to go to court and present your case all over again in front of a different judge; or
• A chance to present new evidence or new witnesses.
The appellate court only reviews what happened in the trial court to decide if a legal mistake was made in the original trial; for example, to see if the trial court judge applied the wrong law to the facts of the case.
The appellate court cannot change the trial court’s decision just because the appellate court judges (called “justices”) disagree with it. The trial court is entitled to hear the evidence and come to its own decision. The appellate court can only reverse the trial court’s decision if it finds a legal mistake in the trial court proceedings that was so important that it changed at least part of the outcome of the case. Because of this heavy burden on the appellant to prove this type of mistake, it is quite difficult to win an appeal.
Also, keep in mind that filing an appeal does NOT stop the trial court’s order. Unless you ask the trial or appellate court to postpone (“stay”) the trial court’s order, you must do what the trial court’s order requires you to do during the appeal. A request for a stay can be complicated, and you may still have to pay some of the money ordered by the trial court upfront. Ask a lawyer if one of these options would be good in your case and get help. But remember that an appeal is NOT a way to put off having to comply with the trial court’s order.

The side that files the appeal is called the “appellant.” The other side is called the “respondent.” If you appeal, the appellate court will review the trial court record to decide if a legal mistake was made in the trial court that changed the outcome of the case.
The side that appeals (the appellant) can ask the appellate court to decide if certain kinds of legal errors (mistakes) were made:
• Prejudicial error: This kind of error is a mistake about the law or court procedures that causes substantial harm to the appellant. Prejudicial error can include things like mistakes made by the judge about the law, incorrect instructions given to the jury, and errors or misconduct by the lawyers or by the jury. The mistakes must have harmed the appellant.
• No substantial evidence: The appellant can ask the appellate court to determine if there was no substantial evidence that reasonably supported the trial court’s decision.
Remember, the appellate court will not consider new evidence. An appeal is not a new trial. You cannot appeal a court’s decision just because you do not like it. There must be a valid reason for you to appeal. Some people want to file an appeal just because they are mad at the judge or at the other side. But appeals and lawsuits are very serious, and the court can punish people who file “frivolous” lawsuits (lawsuits that are not based on a valid reason).
Winning an appeal is very hard. You must prove that the trial court made a legal mistake that caused you harm. The trial court does not have to prove it was right, but you have to prove there was a mistake. So it is very hard to win an appeal.

When the appellate court reviews a case, it needs some rules or guidelines to determine whether a mistake was made in the trial court. There are different kinds of review guidelines for different kinds of trial court decisions. These guidelines are called “standards of review”
When you (the appellant) argue that the trial court made a legal error, the appellate court looks first at what the standard of review is for the particular kind of decision made in your trial court case.
The 3 most common standards of review are:
Abuse of Discretion
If you are appealing a decision that involved the trial court’s use of discretion, the abuse of discretion standard is used by the appellate court in its review. Any decision that involves the judge using his or her discretion (such as whether to admit certain evidence in the trial) comes under this standard. Abuse of discretion occurs when the trial court judge makes a ruling that is arbitrary or absurd. This does not happen very often.
Substantial Evidence
If you are appealing because you think that the decision of the trial court is not supported by substantial evidence, the appellate court uses the substantial evidence standard. The appellate court reviews the record to make sure there is substantial evidence that reasonably supports the trial court’s decision. The appellate court’s function is not to decide whether it would have reached the same factual conclusions as the judge or jury. The appellate court just decides whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record. If there is a conflict in the evidence and a reasonable fact-finder could have resolved the conflict either way, the appellate court will not overturn the trial court’s decision. Because the judge or jury at the trial saw the witnesses and heard what the witnesses said, they were in a better position to decide what actually happened and who was telling the truth.
De Novo
De novo is a Latin phrase meaning “from the beginning.” In de novo review, the appellate court does not defer to the decisions made in the trial court and looks at the issue as if the trial court had never ruled on it. This type of review is generally limited to issues involving questions of law. If the issues involve questions of law — like the interpretation of a contract or a statute — the appellate court does not assume the trial court’s ruling is correct but looks at the issue from the beginning (de novo), exercising its independent judgment. But this kind of review is still not a new trial because the appellate court does not look at new evidence and bases its review on the evidence in the record from the trial court.

Depending on the circumstances in your case, you may be able to file a motion asking the court to change, fix, or cancel the judgment against you. Some of the more common motions are: a motion to vacate or set aside (cancel) the judgment and enter a different judgment, a motion for reconsideration of an order, an application for renewal, or a motion for a new trial. 

This is when a party that is affected by a trial court’s judgment or order asks the same court to cancel the judgment or order that was made. There are different laws that apply in different cases, and usually you have to meet very specific requirements to be able to file a motion to set aside or to vacate. 

This is when the same party who made a motion (a request for an order) that was refused (the entire motion or just part) asks a judge (same or different) to grant the order. This request must be based on new facts, circumstances, or law. There is no time limit. The application must also include an affidavit with information on the original order and the new facts, circumstances, or law.

This is when a party that is affected by a trial court’s order asks the same court to reconsider the order, based on new facts, circumstances, or law. You must file a motion for reconsideration within 10 days of being served with the written notice of entry of the order you want the court to reconsider. The motion must also include an affidavit with information about the original order and the new facts, circumstances, or law. The requirements are very specific.

A motion for new trial asks the trial court to reexamine 1 or more issues of fact or law after a trial and decision by the judge or jury. There are a number of reasons why someone can ask for a new trial, such as jury misconduct; an irregularity with the jury, a party, or a lawyer in the case; insufficient evidence for the verdict; excessive or inadequate damages; an irregularity in the case that prevented one of the parties from having a fair trial; and others. 

Either before or after you appeal, consider settlement or mediation. You may be able to reach an agreement about resolving your dispute with the other side instead of going through the appeal process.
Remember: You still have to meet the filing deadline for the appeal, even if you are trying to settle. That way, if you cannot work out a settlement or agreement, you can still take the case to the appellate court. If you miss your deadline for the notice of appeal because you were trying to mediate or settle, you will have lost your chance to file an appeal. So, unless you have already reached a settlement, make sure you file your notice of appeal within the deadline even if you are trying to reach an agreement with the other side.
If you have filed your notice of appeal, the Court of Appeal or superior court appellate division may have a mediation or settlement program that can help you explore settlement. Each court may be different, so make sure you ask your superior court (if appealing a limited case) or your Court of Appeal (if appealing an unlimited civil case) if any programs like this are available.

To figure out if you can appeal a trial court’s decision, there are three questions you have to consider:
1. Are you a person who can appeal this decision?
Only a person or entity that was a party in the trial court case can appeal a decision made in that case. You may not appeal on behalf of a friend, a spouse, a child, or another relative unless you are a legally appointed representative for that person (such as a guardian or conservator).
2. Can the decision in your case be appealed?
You can appeal the trial court’s final judgment in a case. The final judgment is the decision at the end that decides the whole the case. The final judgment usually says what 1 or more parties must do (like pay money to the other party). This judgment may be a decision by the judge or by a jury. All final judgments are appealable.
You can also appeal most orders that the trial court makes after the final judgment, like, for example, a child custody order made after the divorce is final. In most cases, however, decisions made by the trial court before the final judgment cannot be appealed right away; they can only be reviewed as part of an appeal of the final judgment. There are some exceptions to this rule. In family law and probate cases, many of the orders made in a case can be appealed right away (even if they are made before the final judgment).
3. Do you still have time to appeal?
In a limited civil case (civil cases involving an amount that is $25,000 or less), you must file your notice of appeal by the earliest of the following times:
30 days after either the trial court clerk or the other side serves you notice that the judgment has been entered in your case or a copy of the judgment stamped “Filed,” or
90 days after the entry of the judgment.

In unlimited civil cases (such as civil cases involving an amount over $25,000 or family law cases), you must file your notice of appeal by the earliest of the following times:
60 days after either the trial court clerk or the other side serves you with notice that the judgment has been entered in your case or with a copy of the judgment stamped “Filed,” or
180 days after the entry of the judgment.
If the answer to these 3 questions is yes, the next step is filing the Notice of Appeal.

A notice of appeal is the paper you file in the superior court where your case was decided to let the court and the other side know that you are appealing the court’s decision.  Filing a notice of appeal begins the entire appeals process.

You can file a notice of appeal as soon as the order or judgment you want to appeal is signed by the superior court judge and stamped “Filed” by the court clerk. The judgment is “entered” when it is stamped “Filed.” This is also called the “entry of judgment.”
You MUST file your notice of appeal no later than the following deadlines:
For a limited civil case (a civil case involving an amount that is $25,000 or less), you must serve and file your notice of appeal on or before the earliest of:30 days after either the trial court clerk or the other side mails you notice that the judgment has been entered in your case or a copy of the judgment stamped “Filed,” or
90 days after the entry of the judgment.
For an unlimited civil case (such as a civil case involving an amount over $25,000 or a family law case), you must serve and file the notice of appeal on or before the earliest of:60 days after either the trial court clerk or the other side serves you with notice that judgment has been entered in your case or a copy of the judgment stamped “Filed,” or
180 days after the entry of the judgment.
The time to file a notice of appeal is extended if there is a timely motion:
For a new trial,
To vacate (cancel) or set aside the judgment,
For judgment notwithstanding the verdict, or
To reconsider an appealable order.
The deadline can also be extended if a public entity was the defendant in the trial court case and asks the trial court to take certain other actions.
Because these types of motions and actions may result in a change to the judgment or order you may want to appeal, the time to file the notice of appeal is extended until after the court decides these motions or other requests. That way, you can see if the judgment or order was changed before you decide whether to appeal.

After the Trial – The Appeal Process
If you are found guilty after a trial, you have the right to an appeal process. There are many reasons for an appeal of a criminal case, but appeals are also very difficult, so talk to a lawyer to make sure you know what is best for you.
There are also important deadlines that apply to appeals. If you miss the deadline, your appeal will most likely be dismissed.
For misdemeanor cases, you must file a Notice of Appeal (Misdemeanor) within 30 days of the date of the judgment or order.
For felony cases, you must file a Notice of Appeal — Felony (Defendant) within 60 days of the date of the judgment or order.
Keep in mind that the appeal is not a new trial. The appellate court can review the evidence (testimony and exhibits) presented at your trial to see if the trial court made a legal error in how the testimony or exhibits were received. The appellate court does NOT decide the facts of the case as the judge or jury in the trial court does.
You can only appeal if:
1. You say there was not enough evidence in your trial to justify the verdict or judgment; and/or
2. You say there were mistakes of law during or before the trial that hurt your case.
If you say there was not enough evidence in your trial to justify the judgment, the appellate court will review the record and decide if there was substantial evidence to support the judgment. If you say mistakes of law were made, the appellate court will hold a hearing to listen to both parties. Then they will decide if there was any irregularity or mistake that prejudiced (hurt) your case.

In addition to appealing after a trial, there are other situations when you can file an appeal, like appealing the validity of a plea or probation violations. Talk to me to learn more about your options to appeal.