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The Top 5 Myths about Appealing Your Civil Lawsuit in California

Mar 19, 2008
Most of us have seen some movie character jump up at his table in the courtroom to bellow, I'll appeal this all the way to the Supreme Court! Now, that person is you, but you're not certain whether an appeal makes sense. Or perhaps your adversary is appealing and you simply need to know what to expect. This article addresses five common misconceptions about appeals in California civil cases.

Myth No. 1: An appeal gets your case heard by the Supreme Court.

An appeal is heard before an intermediate appellate court and has only a remote chance of ever getting to the United States Supreme Court or California Supreme Court. You have a right to appeal to the intermediate court, but no right to have your case heard by either supreme court, both of which are very selective about the cases they hear. The percentage of cases that make it to either court is in the very low single digits.

Myth No. 2: An appeal is a second trial of the case.

An appeal does not even remotely resemble a trial. An appeal is decided by three judges who won't hear any of the witnesses, won't see the arguments the lawyers made in the trial court, won't see the parties and won't form any of the same emotions that the jury did at trial. Their view of the case will be based almost entirely on stacks of paper and written arguments submitted by the parties, with only a brief oral argument (a half hour or less, in most cases).

The judges on the appellate court aren't there to decide who should have won at trial. They are there only to determine if some error was made in the trial proceedings. Thus, the best a party can expect in the majority of appeals is that the court will send the case back to the trial court for further proceedings, such as a new trial.

Myth No. 3: An appeal will drag the case out for years.

It's possible, but not necessarily true. The court's backlog and the amount of extraordinary activity in any given case will determine how long the appeal takes.

Appeals from federal courts in California generally take much longer than appeals from California state courts. While federal appeals often take two years or more, cases in some districts and divisions of the California Court of Appeal can be decided in well under a year from the time the appeal is filed, so long as there is no unusual activity in the case.

The timing of a decision on appeal may be relevant to issues such as settlement, fees, and collateral for the appeal bond. You should ask your appellate lawyer what to expect in your case.

Myth No. 4: You won't have to pay the judgment while the case is on appeal.

Some people believe that they can forestall the collection of a judgment against them merely by filing an appeal. However, the filing of an appeal does not, in itself, prevent the winner from enforcing a money judgment.

To forestall collection, the party appealing must also post a bond to guarantee the judgment creditor's ability to collect at the conclusion of the appeal if the judgment is affirmed. The amount of the bond is set by the court and is usually in an amount greater than the judgment to allow for the accrual of interest on the judgment while the case is on appeal. The judgment debtor who appeals must provide collateral for the bond.

Myth No. 5: Your trial lawyer is always the ideal lawyer to handle your appeal.

It's tempting to think that the best lawyer for your appeal is the lawyer that handled your case at trial. Who knows your case better, after all?

That's the problem. Your trial lawyer has so much time, energy, and emotion invested in the case, that he can lack the objectivity necessary to identify the best strategy and arguments for appeal. Combined with many critical differences between a trial and an appeal, these factors often make your trial lawyer less than the ideal attorney to handle your appeal.

Could your trial lawyer do a great job on your appeal? Sure, especially if she has experience with appeals. But many trial lawyers who recognize the differences between trials and appeals also recognize that they should refer their clients to appellate counsel, or at least consult with appellate counsel during the course of an appeal.
About the Author
Greg May's law practice, G. T. May Law Offices, focuses on civil and criminal appeals and select civil litigation in state and federal courts throughout California. He authors the appellate law blog The California Blog of Appeal. He can be reached at greg@gtmay.com. This article is not intended as, nor should it be relied upon, as legal advice.
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