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.