Appellate Counsel For California Trial Lawyers
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Frequently Asked Questions

How does the appellate process work? How is it different than the trial process?

The purpose of a trial is to resolve disputed factual issues and to apply the relevant legal principles to the facts as determined in the trial. Trial lawyers rely on “evidence,” to persuade the fact finder (either a judge or a jury) to accept their client’s version of the facts. The evidence is generally either witness testimony or documents.

A party who is not satisfied with the outcome of the trial, or with certain legal rulings by the trial judge before the trial, can seek appellate review of the outcome by filing an appeal. In both the California courts and the federal courts, there is a right to appeal; that is, the appellate court must hear a properly noticed appeal. It has no discretion to choose which appeals it will decide and which appeals it will decline to hear. (Not all states follow this approach.) In both the California and federal courts, the appeal will be heard by a panel of three appellate judges.

Appeals are unlike trials. They do not involve the presentation of any new evidence. Rather, the appellate judges make their decision based on the written record of the evidence presented in the trial court (called the “appellate record”). Almost all appeals are limited to two issues: was there enough evidence presented to support the factual findings by the judge or jury, and did the trial judge correctly apply the law?

In answering the first question, the appellate court will not redetermine the factual issue. It will simply review the record and decide whether there was “substantial evidence” to support the factual findings.   

In answering whether the trial court applied the law correctly, the appellate court will review pure legal rulings independently. This means that it will decide the issue without regard to how the trial court resolved it, reaching the position that it believes is correct. Not all issues the trial court decides are legal issues. Many, if not most, are issues on which the trial court has discretion to decide as it thinks appropriate, given the circumstances. Examples of these kinds of discretionary rulings include whether a party seeking to have a deadline extended has presented “good cause” to support its request, or whether certain evidence should not be presented to the jury because it was likely to be too confusing.

When appellate courts review discretionary rulings, they generally defer to the trial court’s ruling, and will overturn the ruling only if it was so arbitrary that no rational trial judge could have ruled as the trial court did.

Appellate courts decide appeals based on the appellate record and the arguments presented to the court in the parties’ briefs. The appealing party, called the “appellant,” will file an opening brief, which explains the relevant facts and makes its arguments for why the outcome being appealed was incorrect and should be reversed. The responding party, called the “respondent” in the California appellate courts and the “appellee” in the federal system, will file a brief that responds to the points made by the appellant. Finally, the appellant will file a reply brief, which responds to the points made by the responding party.

When the appellate court is ready to decide the appeal, it will sometimes hold “oral argument.” In the California system, the parties have a right to present argument of up to 30 minutes per side. (Some courts, however, will limit argument to 15 minutes, absent a special request for more time.) In the federal system, there is no right to present oral argument, and the appellate court will decide in each case whether it believes that argument would assist it in deciding the appeal. In the Ninth Circuit, when the court grants argument, each side will be given either 10, 15, or 20 minutes to present its position, depending on how complex the appellate court considers the case.

After the argument, the appeal will be deemed “submitted.” In the California system, the court will file its opinion within 90 days of the argument. In the federal system, there is no fixed deadline for when the court must file its decision.

In both the California system and the federal system, a party who is unsatisfied with the outcome of the appeal can seek review by a higher court, either the California Supreme Court or the U.S. Supreme Court. Those courts, however, are granted discretion to decide which matters they will hear. Review by either court is rare.

Why should I hire an appellate specialist to handle my appeal?

It makes sense to hire an appellate specialist because the appellate process is a discrete part of the broader civil-litigation system. It has its own rules, procedures, and norms. Lawyers who specialize in handling appeals are experts in these aspects of appellate practice, improving the chances of prevailing on appeal.

The most important difference between the trial and appellate process is the importance of written advocacy. On the plaintiff’s side, the principal function of legal writing in the trial court is to keep the case alive through the pre-trial process, so that the trial lawyer can win the case at trial. Appeals are different. The outcome of almost every appeal is dictated by the appellate court’s reaction to the appellate briefs. The party with the best briefs often wins.

In addition, oral advocacy in appellate courts is unlike the trial court. Because appellate courts sit in 3-judge panels, the appellate advocate may be peppered with questions from each of the judges—sometimes at once. And the questions posed by appellate judges will often focus on appeal-specific issues, such as the standard of review or whether certain arguments were preserved for appeal.

Because appellate advocacy depends on being able to write persuasive briefs and to respond to the questions posed by appellate judges, appellate specialists tend to have honed these skills in ways that trial lawyers have not.

Simply put, appellate specialists think like appellate judges. As a result, they can often communicate with appellate judges more effectively than trial lawyers, whose skill sets have been developed to succeed at trial.

Hiring an appellate specialist to handle an appeal presents the following advantages:

  • Familiarity with appellate procedure. Appellate specialists know which orders are appealable and which are not; how to draft a proper notice of appeal; what portions of the trial record to include in the appellate record; and the procedures for designating the appellate record.
  • Objectivity. An appellate specialist who has not been involved in the case through the trial process will view the appeal in much the same light as the appellate court itself. As the Court of Appeal observed in Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-50, “trial attorneys who prosecute their own appeals, such as appellant, may have ‘tunnel vision.’  Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.”
  • Relevant skill-set. Appellate specialists will be highly skilled in the tasks that appeals require. They will view the appeal through the same conceptual lens as the appellate court and will therefore have a better sense of which issues are likely to resonate and which should be deemphasized or omitted. Appellate specialists are able to produce persuasive appellate briefs, written in a way that will be trusted by appellate courts. They will also be able to defend the positions taken in that brief during oral argument, a process unlike anything that happens in the trial court.
  • Time savings for trial counsel. Appeals are time consuming, particularly for lawyers who are not intimately familiar with the appellate process. By allowing an appellate specialist to handle the appeal, the trial lawyer is able to devote the time that the appeal would require to more rewarding pursuits, whether that is his or her trial practice, or having more time available to do things other than work.

Why should I hire the Ehrlich Law Firm to handle my appeal?

 Jeff Ehrlich is one of California’s most accomplished appellate lawyers. He has briefed and argued over 200 appeals, including landmark victories in the U.S. Supreme Court and California Supreme Court.  

Jeff blends the skills required of an appellate specialist with the heart of a trial lawyer. He has been certified as an appellate specialist by the State Bar of California’s Committee on Legal Specialization for over 20 years, bringing the expertise developed in that time to each appeal he handles. And he is deeply involved with CAALA, sitting on its Board of Governors as an Emeritus Member, and editing its Advocate magazine for the last decade.

Like many lawyers who have focused their careers on appeals, Jeff enjoys the parts of appellate practice that cause many trial lawyers to avoid it—extensive legal research and extensive legal writing. The continuing-legal-education classes he takes – and often teaches – focus on becoming a better writer.

In addition to having the generalist skills of an appellate specialist, Jeff has substantive expertise in the insurance-related issues that are often critical to the plaintiff’s bar. He is a co-author of the most widely-cited insurance treatise in California, Croskey, Heeseman, Ehrlich & Klee, California Practice Guide – Insurance Litigation (Rutter 2020).

Ultimately, a lawyer’s results over time are the best way to judge how good the lawyer is. Since 2007, Jeff Ehrlich has successfully defended judgments totaling over $270 million, and has won important decisions that have safeguarded the rights of California consumers.  This is why many of California’s most successful trial lawyers turn to him when they need appellate counsel.

You can learn more about Jeff’s experience and appellate successes here.

In a recent profile in the Los Angeles Daily Journal, some of Jeff’s trial-lawyer clients said this about him:

He’s one of the only appellate lawyers I know who is able to match so eloquently on paper what most people can only do in oral argument. His writing reads like a novel you want to finish in one night. You can feel what was going on in the courtroom.

– Robert T. Simon, Simon Law Group

It’s rare for me to say that someone sees something I don’t. It always surprises me, the issue he sees that tells me, "Thank goodness you hired him.”

– Arash Homampour, Homampour Law Firm PC

He’s the kind of guy, if I’m ever excited about a new case, he manages to give me all of the ‘what ifs’ and all of the defense arguments.

– Michael J. Bidart, Shernoff Bidart Echeverria LLP

Even a partner at one of the premier defense appellate firms in the State, who often litigates against him, had good things to say about Jeff:

He’s certainly skilled at making even a stretch of an argument sound plausible. That’s tough to go up against. But I also know he’s not going to play games. He’s going to fight the fight at hand.

– Lisa J. Perrochet, Horvitz & Levy LLP

How much will it cost to hire the Ehrlich Law Firm?

We handle most of our appeals on a contingency-fee basis. The size of the fee will depend on a variety of factors, including the difficulty of the appeal, the amount at stake, and the size of the record. Given California’s rule that judgments bear interest at 10 percent annually, the fee will be a fraction of the interest that the judgment will generate during the appellate process.

When a contingency fee is not appropriate for the appeal, Jeff will sometimes work on an hourly basis.

How long does an appeal take?

The appellate process is seldom speedy. Every appellate court in California has a backlog. The most recent statistics for the California court system are for 2018. They show that there were over 5,000 fully-briefed civil appeals pending in the California Courts of Appeal. On average throughout the state, the average time between the filing of the notice of appeal and the disposition of the appeal is 541 days. The fastest court in California disposes of appeals in 420 days, on average, while the slowest takes 803.

Ninety percent of all civil appeals are disposed of within 914 days, on a statewide average. But the slowest courts, in Sacrament and San Jose, take roughly 800 days to dispose of 90% of all of their civil appeals.

Appellate Passion: Jeffrey Ehrlich has helped set precedent, but he’s proudest of getting one man out of prison.
Los Angeles & San Francisco Daily Journal,
Monday, May 21, 2018

Read more about the Ray Jennings Case

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