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Appellate Frequently Asked Questions
The following answers provide general information about appellate practice. Appellate procedure depends upon the court, type of case, judgment or order involved, and procedural history.
This information is not legal advice and should not be used to calculate a filing deadline.
What is an appeal?
An appeal asks a reviewing court to examine a judgment or appealable order entered by a lower court.
An appeal is generally not a new trial. The appellate court ordinarily reviews the record created below to determine whether reversible legal error occurred.
What is a writ petition?
A petition for extraordinary writ asks an appellate court to intervene in an underlying proceeding, often before final judgment.
Writ review is generally discretionary and differs significantly from an ordinary appeal.
What is the difference between an appeal and a writ?
An appeal ordinarily proceeds from a judgment or order for which the law provides appellate jurisdiction.
A writ petition invokes the reviewing court's extraordinary jurisdiction and may be considered when ordinary appellate review is unavailable or may not provide an adequate remedy.
Whether a matter is properly addressed by appeal or writ depends upon the particular ruling and procedural posture.
Can new evidence be introduced on appeal?
Generally, appellate courts review the record created in the trial court rather than receiving new evidence or retrying the case.
For that reason, development of the trial-court record can be important long before an appeal begins.
What is a standard of review?
The standard of review describes the framework an appellate court uses when examining a particular ruling or issue.
Different issues may receive different levels of appellate scrutiny. The applicable standard can materially affect how an appellate issue is evaluated and presented.
What does preservation of error mean?
Appellate courts generally review issues that were properly presented and preserved in the proceedings below.
Depending upon the issue, preservation may involve making an argument, raising an objection, presenting evidence, requesting particular relief, or obtaining an appropriate ruling.
The applicable requirements vary with the issue and proceeding.
What is the appellate record?
The appellate record contains the materials the reviewing court may consider when deciding the appeal.
Depending upon the matter, it may include pleadings, motions, orders, a clerk's transcript or appendix, a reporter's transcript, exhibits, and other properly included trial-court materials.
Does filing an appeal automatically stay the judgment?
Not necessarily.
Whether enforcement or other trial-court proceedings are stayed may depend upon the type of judgment or order, applicable statutes and rules, whether an undertaking or bond is required, and other circumstances.
A party should not assume that filing a notice of appeal automatically prevents further action.
How long does an appeal take?
There is no single timetable applicable to every appeal.
Timing can depend upon preparation of the record, briefing, the court's calendar, complexity of the issues, extensions, oral argument, and other procedural events.
When should appellate counsel become involved?
Appellate counsel may become involved after judgment, but appellate consultation can sometimes be useful earlier.
Significant dispositive motions, evidentiary rulings, preservation issues, writ questions, and record-development issues can arise while trial-court proceedings remain pending.
What is an appealable order?
Not every trial-court ruling can immediately be appealed.
California appellate jurisdiction depends upon whether a judgment or order is made appealable by law. Some rulings must await final judgment, while others may be immediately appealable or potentially subject to writ review.
What is the difference between the Court of Appeal and the Superior Court Appellate Division?
They are separate reviewing courts with different jurisdiction.
California Courts of Appeal generally review matters within their statutory appellate jurisdiction arising from Superior Courts.
Superior Court Appellate Divisions handle separate categories of matters, including certain limited civil, misdemeanor, and infraction appeals.
What happens after a notice of appeal is filed?
Filing the notice of appeal begins the appellate process, but substantial work remains.
Among other things, the appellate record must be designated and prepared, transcripts may need to be arranged, and the matter eventually proceeds into appellate briefing under the applicable rules.
What is a clerk's transcript?
A clerk's transcript is a collection of documents from the trial-court file prepared for use in the appeal.
Depending upon the case and applicable procedures, an appendix or another authorized form of record may sometimes be used instead.
What is a reporter's transcript?
A reporter's transcript is the written transcript of oral proceedings that were reported in the trial court.
Whether a reporter's transcript is necessary depends upon the issues presented and the proceedings relevant to appellate review.
Have a Specific Appellate Matter?
General information cannot determine whether a particular judgment, order, or ruling presents a viable appellate issue.
If you would like the firm to consider whether it is feasible to continue with the intake process, the first step is a brief conflict check.
Using this website or submitting a conflict check does not create an attorney-client relationship and does not extend, suspend, stay, or otherwise affect any legal, trial-court, appellate, or other deadline or proceeding.