An appeal is a legal proceeding that allows a losing party to challenge mistakes made in a lower court. Generally, those must be legal mistakes, not just factual errors.
In an appeal, the party that lost in the lower court asks a higher court to modify or reverse the lower court’s decision.1 The party that won in the lower court then responds by arguing that the lower court’s outcome should remain the same.2
To bring an appeal, it is not necessary for the party to have lost entirely in the lower court. The party might choose to appeal because they are dissatisfied with a particular aspect of the lower court’s decision. Likewise, the responding party might not always have completely won. But they will usually want the lower court’s outcome to remain the same—or, at least, not be made any worse for them.
In California, the lower court is called the “superior court.” The higher court is usually called the “court of appeal.” In smaller cases, the higher court is the appellate division of the superior court.
The general process that cases go through as they proceed through California’s courts looks kind of like this:
Of course, there are exceptions to this process—like with smaller cases. These concepts are explained in more detail below.
Why are appeals important?
Appeals serve a number of important purposes. Most obviously, appeals provide parties with an opportunity to fix mistakes made in their case.3 Without an appeal, a party that was wrongfully treated in some way would have no way of correcting that wrongful treatment.
Additionally, appeals encourage lower court judges to fairly and correctly apply the law. Lower court judges usually dislike having their decisions reversed by higher courts. The prospect that an appeal might be filed can motivate judges to carefully render its decisions.
If a judge’s decisions have a high reversal rate, it can harm his or her reputation among colleagues and take away from his or her authority and credibility. The mere possibility that a decision could be the subject of an appeal provides lower court judges with an incentive to reach the correct decision.
Finally, appeals are an important tool for the evolution of the law. In the United States, the outcomes in certain legal cases can serve as “precedent” in similar cases in lower courts. This means that the holding of an appellate case can sometimes be controlling authority in future cases in which there are similar facts or legal concepts at issue.
For a case to hold precedential authority in California, however, the appellate court’s decision must be published.4
What happens during an appeal?
Record on Appeal
After the notice of appeal is filed, the record on appeal must be prepared. The record on appeal consists of transcripts and documents from the lower court, which the court of appeal will review to reach its decision.6 Appellate courts in California generally do not permit parties to file new evidence, so the record on appeal will usually be sole factual basis for the appellate court’s decision.7
In civil cases, the appealing party is responsible for filing a notice in the superior court that designates the record on appeal.8 This designation identifies the scope of the record that is being requested by the appealing party for the appellate court’s review. A sample designation form can be found here.
After the record is filed and the parties have ensured that the record on appeal is complete, they may then choose to augment the record on appeal.11 Augmenting the record allows parties to add additional parts of the lower court’s record to the record on appeal. Parties may wish to do this if, for example, the normal record on appeal does not include information that is important to their case.
After the issues with the record have been resolved, the appealing party will begin preparing the opening brief.12 The opening brief is the first opportunity for the appealing party to address the court of appeal. The opening brief should explain: why the party has a right to appeal the lower court’s decision, the procedural history of the case, the facts of the case, and why the party’s requested relief should be granted.
After the opening brief is filed, the non-appealing party will file a respondent’s brief.13 The respondent’s brief is an opportunity for the non-appealing party to explain its version of the facts and to counter the arguments that were made in the opening brief.
Finally, the appealing party will have an opportunity to file a reply brief.14 The reply brief is the last opportunity for the appealing party to file a written response to the arguments made in the respondent’s brief. The respondent generally does not have a right to file additional briefing after the reply brief is filed.
Argument & Decision
After briefing is complete, the parties will have an opportunity to orally argue before the court of appeal.15 In some cases, both parties waive oral argument—meaning, they choose not to argue the case, and allow the court of appeal to decide the case based solely on the briefs.
After oral argument (or after oral argument has been waived), the case is submitted to the appellate court for a decision.16
An appeal is usually decided by a three-judge panel. In most cases, the panel issues a written opinion that explains the decision and the court’s reasoning, which is then promptly filed by the clerk of the court.17
After the appeal is decided, one of the parties might choose to request a rehearing or petition the California Supreme Court for a review of the case.
It is important to understand that the exact procedures required will vary in each case. Every case will have its own unique needs in terms of which documents to file and when. This article cannot address every possible type of brief that could be filed, but hopefully it has provided a general overview.
If you are planning to appeal a decision in your case, you should confer with a qualified appeals lawyer to ensure that you follow all the correct procedures and meet all deadlines.
What are the odds of success on appeal?
The odds of success will depend on the strength of the legal arguments being made. Some cases present very strong arguments, while others present very weak arguments. Listed below are some statistics about the decisions of California’s state appellate courts.
The Judicial Council of California releases annual court statistics reports detailing the trends in California courts. The 2016 report (which is available here) included the data below from 2015 appellate cases.
Please note that these charts are posted here purely for educational purposes, and do not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
In California, between four and six percent of criminal appeals brought by the defendant usually result in a reversal.18
About 24 or 25 percent of appeals brought by the defendant are affirmed with modifications—meaning that the overall outcome was affirmed, but some aspect of the final judgment must be revisited by the lower court.19
The remaining ~70 percent of cases are either affirmed in full or dismissed.20
In civil appeals, between 16 and 18 percent of appeals usually result in a reversal.21
Another 10 percent of civil appeals are usually affirmed with modifications—meaning, again, that the overall outcome was affirmed but some aspect of the final judgment must be revisited by the lower court.22
The remaining 72 or 74 percent of appeals are affirmed in full or dismissed.23
How long does an appeal usually take?
A variety of factors contribute to how long an appeal might take to reach a final decision. These factors include the complexity of the issues being argued, the speed at which the parties file their briefs, how quickly the record gets filed, and the size of the appellate court’s docket. It is not unusual for a case to take more than a year—from the time of the filing of the notice of appeal—to reach a final decision.
In California civil appeals, the median time for a decision to be reached is roughly 469 days from the date the notice of appeal is filed.24 In California criminal appeals, the median time for a decision to be reached is roughly 439 days from the date the notice of appeal is filed.25 Again, however, the speed at which cases are decided can vary substantially.
The party that lost in the lower court is called the “appellant.” (Cal. Rules of Court, rule 8.10, subd. (1).)Footnote 1
The party that won in the lower court is called the “respondent.” (Cal. Rules of Court, rule 8.10, subd. (2).)Footnote 2
In re Reno (2012) 55 Cal.4th 428, 450–451 [explaining that trials and their subsequent appeals allow litigants a fair and full opportunity to assess the truth of the charges against the defendant and the appropriate punishment].Footnote 3
Cal. Rules of Court, rule 8.1115, subd. (a).Footnote 4
Cal. Rules of Court, rules 8.100, 8.304 & 8.405.Footnote 5
Cal. Rules of Court, rules 8.120 & 8.320.Footnote 6
Redsted v. Weiss (1945) 71 Cal.App.2d 660, 666 [“Applications to produce additional evidence [on appeal] . . . will be granted only in exceptional cases.”].Footnote 7
Cal. Rules of Court, rule 8.121.Footnote 8
Cal. Rules of Court, rule 8.320, subd. (a).Footnote 9
People v. Barton (1978) 21 Cal.3d 513, 519–520 [“[C]ounsel has a duty to insure that there is an adequate record before the appellate court . . . .”].Footnote 10
Cal. Rules of Court, rules 8.155 & 8.340.Footnote 11
Cal. Rules of Court, rules 8.200 & 8.360.Footnote 12
Cal. Rules of Court, rules 8.200 & 8.360.Footnote 13
Cal. Rules of Court, rules 8.200 & 8.360.Footnote 14
Cal. Rules of Court, rules 8.256 & 8.366.Footnote 15
Cal. Rules of Court, rules 8.256 & 8.366.Footnote 16
Cal. Rules of Court, rules 8.264 & 8.366.Footnote 17
Jud. Council of Cal., 2016 Court Statistics Report, Statewide Caseload Trends, at p. 67.Footnote 18
Id. at p. 28.Footnote 24
Id. at p. 29.Footnote 25