Appeals and Writs - Los Angeles County Bar Association

Preparing a Case
> Think about a potential
appeal throughout all
stages of a case
> Approach the filing of a
writ with caution, because
so few are granted
By Wendy Marantz Levine
Appeals and Writs
Your dreams are coming true. You
pass the bar, hang out your shingle,
take your first case, and anticipate
the thrill of victory. But, alas,
the unexpected occurs: You lose an essential
motion, or the court enters a judgment
against your client. You enter the world of
appellate advocacy.
The most common way to bring your case
before an appellate court is a direct appeal
from a final judgment or appealable order.
Not all orders, however, are appealable.
When an order is not appealable, you may
seek appellate review by petitioning the
court to issue an extraordinary writ, especially
in state court. In federal court, statutes
and rules also permit interlocutory appeals
of some nonappealable orders, including
orders regarding class action certification. 1
Before deciding on the appropriate procedure
for taking your case to the appellate
court, exercise caution in deciding whether
to even appeal the case in the first place. In
California state court, only about 15 percent
to 20 percent of contested civil cases are
appealed from the superior court to the
courtofappeal. 2 Even fewer cases are
appealed in federal court. Only 15 percent of
federal district court civil and criminal cases
within the Ninth Circuit are appealed. 3 This
is so because appellate courts give deference
to trial court judgments and tend to
affirm actions taken by lower courts and
summarily deny most writs. Often there will
be more productive uses of your client’s time
and money than pursuing an appeal or a
writ. But if you do decide to proceed,
advance planning is crucial.
Read the rules. This seems obvious but it
cannot be stated enough. The appellate
process is straightforward but detailed, and
one mistake—such as miscalculating a filing
deadline for a notice of appeal—can be fatal
to your client’s case. Therefore, the first and
last rule of appellate advocacy is that you
must read the applicable court rules. Read
the state or federal appellate rules, read the
local rules, and then read them again.
Be careful to note the differences
between state and federal appellate courts.
One difference that is too often overlooked
involves the name of the courts: Federal
appellate courts are known as courts of
appeals while the California state equivalents
are courts of appeal. Similarly, in federal
court appellate judges decide cases
while in state court appellate justices decide
cases. Placing the wrong name of the court
on the cover of your brief or addressing the
decision maker by the wrong title at oral
argument will most assuredly send a bad
message, albeit unintentional.
Prepare for the appeal early. It is critical
to think about a potential appeal throughout
all stages of a case. Issues that you do not
raise with the trial court will be deemed
waived and, for the most part, cannot be
brought before the appellate court. Therefore,
all relevant issues, including evidentiary
objections, must be preserved properly
for the appellate record. When you are
preparing for critical moments during litigation—including
summary judgment, motions
in limine, jury selection, directed verdict
motions, jury instructions, and posttrial
motions—keep in mind the necessity for
ensuring that a complete and accurate trial
record will be available for an appeal.
Timely file the appeal and present the
record. The first formal step in filing an
appeal is to file a timely notice of appeal of
an appealable order or judgment. 4 In
California state court, a notice of appeal
must be filed in the trial court by the earlier
of 60 days after service of a notice of entry of
judgment or 180 days after entry of judgment.
5 In federal court, an appellant normally
has only 30 days to file the notice of
appeal in the district court. 6 An untimely filing
of a notice or a mistake in identifying an
appealable order could result in the appellate
court being unable to hear the appeal. Also,
be certain to pay the appropriate filing fees.
The next step is to designate or prepare
the appellate record within the specified time
period. 7 The record usually consists of the relevant
documents filed in the trial court—often
called the clerk’s transcript or record—and a
transcript of the oral proceedings—often
referred to as the reporter’s transcript. Some
courts also allow, or even require, the litigants
to prepare separate or joint appendices
of the relevant parts of the record.
The appellate court has no independent
knowledge of the case and is bound by the
record before it. It is the rare case for which an
appellate court will permit supplementation
of a record. Therefore, litigants must give an
appellate court everything it needs to decide
Wendy Marantz Levine is the deputy director of litigation at Bet Tzedek Legal Services.
She wrote this article as an associate in the Appellate and Litigation Departments at
Irell & Manella LLP in Los Angeles.
52 ❘ Survival Guide for New Attorneys

the case and not bury any pertinent information
in irrelevant or duplicative filings.
Carefully prepare the requisite appellate
briefs. When the record is complete, the parties
prepare written briefs, which are the
heart of the appellate process. 8 The typical
appeal consists of three briefs: the appellant’s
opening brief, the respondent’s brief,
and the appellant’s reply brief.
Because page limits are strict and the
stakes are high, take time to organize your
briefs and to perfect the writing so that you
capture and rivet the court’s attention.
Seemingly small sections of briefs—such as
the summary of argument, the introduction,
or the presentation of issues—may be the
critical portions that judges will reference
before hearing oral argument or when rendering
an opinion. Treat every word in a brief
as an opportunity to convince the court of
your client’s position.
In order to carefully select the issues that
you want to present and the way that you
want to present them, you must be cognizant
of the standard of review that governs
the issues. The structure of a brief will be
different depending on whether the appellate
court is reviewing questions of law,
questions of fact, discretionary rulings, or
mixed questions of law and fact.
If a judgment involving an evidentiary
conflict is supported by substantial evidence,
the appellate court will not decide
the facts. Moreover, a discretionary ruling of
the trial judge will not be disturbed absent a
clear showing of an abuse of discretion. If
the appellate court determines that the trial
court made an error but the error is harmless,
the appellate court will not overturn the
judgment unless the error will result in a
miscarriage of justice.
Practice your oral argument. Litigants
appealing an order or judgment in California
state court have a right to an oral argument
after the briefing is complete. 9 There is no
corollary right to oral argument in federal
court, although federal courts do hear oral
argument in cases in which the courts think
that oral argument will be helpful. 10 Your
brief is your only opportunity to convince
federal appellate judges that oral argument
is warranted.
During oral argument, you will have only
10 to 30 minutes to convince the appellate
panel that the position in your briefs is correct
and to clarify any points that may be
unclear. Oral argument is not an opportunity
to summarize your briefs or to raise new
issues. The best oral arguments are those in
which the litigants answer the court’s questions
and sit down when their points are
made, even if they have time left to spare.
The privilege of appearing before an
appellate court carries with it the responsibility
to be intimately familiar with the record
and the strengths and weaknesses of your
case. To prepare properly, you should practice
your oral argument with your colleagues
and your client. Videotaping moot sessions
and critiquing them will yield benefits that
will be apparent during the actual argument.
Consider filing a writ. When an appeal is
not available because the contested order is
not appealable, a writ may provide relief. A
writ is a judicial order, often from a higher
court to a lower court, to perform or refrain
from performing a specified act. Appellate
courts have discretion to review nonappealable
orders and judgments through writ
applications (also called petitions).
Approach the filing of a writ with caution,
since 90 percent of writ applications filed in
California courts are denied. 11 As infrequently
as writs are granted in the state system,
they are even rarer in the federal system.
12 The Ninth Circuit frowns upon writs.
Indeed, it will only grant them in extraordinary
cases, including those in which 1) there
is no avenue of direct appeal, 2) the petitioner
will be harmed in a way not correctable
on appeal, 3) the district court has
taken a clearly erroneous action warranting
immediate relief, or 4) the district court’s
error is an oft-repeated one or presents a
new and important issue. 13
The California Court of Appeal has original
jurisdiction over three general types of
statutory writs:
• Writs of mandate to correct an abuse of
discretion or to compel performance of a
ministerial duty. 14
• Writs of prohibition to prevent a threatened
judicial act in excess of jurisdiction. 15
• Writs of certiorari to correct a completed
judicial act in excess of jurisdiction. 16
While the California Legislature has
authorized these writs, appellate courts still
have discretion to decide if they will grant or
deny a writ.
Filing a petition for a writ is a far different
process than filing a complaint or an appeal.
The client or the attorney must verify the writ
petition on the basis of personal knowledge,
not information and belief. The petition must
be accompanied by a memorandum of
points and authorities and by all exhibits
necessary for the appellate court to make a
decision on the merits. While a designated
record is required for an appeal, it is not
required for a writ. The prevailing party in the
lower court can file an unsolicited preliminary
opposition or can wait to file an opposition
in response to a court request. The
appellate court decides whether it will hear
oral argument. At the court’s discretion, it
can summarily deny the petition or rule on
the petition by issuing a written opinion.
Consider retaining an appellate specialist.
A keen trial lawyer often considers
retaining an appellate specialist during trial
to ensure that a case will have all the appropriate
elements in place for a successful
appeal if one is necessary. The appellate
specialist also may be retained to handle a
writ or an appeal. The State Bar of California
certifies appellate specialists. 17
Although trial lawyers must be intimately
familiar with their cases, having a fresh set of
eyes that can see a case through the prism of
experience with the appellate process and
with knowledge of how appellate judges
approach the issues can be extremely helpful.
This is particularly true when the trial
lawyer’s perspective is colored by a stinging
loss in the trial court.
As one California court noted: “Appellate
work is most assuredly not the recycling of
trial level points and authorities….Rather
than being a rehash of trial level points and
authorities, the appellate brief offers counsel
probably their best opportunity to craft
work of original, professional, and, on occasion,
literary value.” 18 ■
1 FED. R. CIV. P. 23(f), 54(b); 28 U.S.C. §1292(b).
2 JON B. EISENBERG, ELLIS J. HORVITZ & JUSTICE HOWARD B.
WIENER, CALIFORNIA PRACTICE GUIDE: CIVIL APPEALS AND WRITS
§1:38 (2004) [hereinafter EISENBERG].
3 JUDGE DOROTHY W. NELSON, CHRISTOPHER A. GOELZ & MEREDITH
J. WATTS, FEDERAL NINTH CIRCUIT CIVIL APPELLATE PRACTICE §1:50
(2004) [hereinafter NELSON].
4 FED. R. APP. P. 3; CAL. R. OF CT.1.
5 CAL. R. OF CT. 2(a).
6 FED. R. APP. P. 4(a)(1)(A).
7 FED. R. APP. P. 10-12; CAL. R. OF CT. 4–12.5.
8 FED. R. APP. P. 28; CAL. R. OF CT. 13–17.
9 CAL. CONST. art. VI, §3.
10 FED. R. APP. P. 34(a)(2).
11 Eisenberg, supra note 2, at §15:1.3.
12 Nelson, supra note 3, at §13:11; see also 28 U.S.C.
§1651; FED. R. APP. P. 21.
13 Bauman v. United States Dist. Court, 557 F. 2d 650,
654–55 (9th Cir. 1977) (establishing test for evaluating
writs).
14 CODE CIV. PROC. §1085.
15 CODE CIV. PROC. §1102.
16 CODE CIV. PROC. §1068.
17 For information on the State Bar’s requirements for certification
as an appellate law specialist, see http://www
.calbar.ca.gov.
18 Marriage of Shaban, 88 Cal. App. 4th 398, 408–10
(2001).
Survival Guide for New Attorneys ❘ 53