When all efforts have failed in the trial court, the appellate court offers relief through two procedures: a direct appeal, or a writ petition. The right to appellate relief is statutory in nature, and by statute only certain types of orders may be reviewed by a direct appeal. These include final judgments, injunction orders, postjudgment orders, and many types of probate and family court orders. What about orders before trial that turn the case upside down? Rulings that exclude key evidence, or that remove issues from the case, cannot be appealed directly, but the appellate court may review them under their common law authority when raised in a petition for a writ of mandate.
We help clients and other attorneys raise timely appeals and writ challenges, and prosecute them to victory.
Challenging a key trial or pretrial ruling is difficult for two reasons. First, the appellate court will consider granting a writ only when necessary to prevent irreparable injury. Second, a writ petition needs to be brought immediately, and trial attorneys typically are already overtaxed with the trial itself. We can evaluate whether there is irreparable injury at stake to give your writ petition a likelihood of prevailing. And we can prepare the petition itself so the trial team can focus on trial.
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California's 60-day deadline to appeal begins to run once a party is served with a file-endorsed copy of the judgment that shows the date of service. That sounds simple, but the requirements for that document under California Rules of Court, rule 8.104, can be tricky to meet. The same can be true in federal appeals due to Federal Rule of Civil Procedure 58, which makes the deadline to appeal certain orders later than others. We analyze the orders and the record to determine appellate deadlines, and whether the extension rules apply.
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Most attorneys know that, on appeal, it is important to raise no more than 2-3 of the most important issues, and not to "throw the spaghetti against the wall." But what is often overlooked here is that selecting the theme of the appeal, the lens through which the issues will be viewed. For this, the entire case needs to be retold. Why? Your story was adapted for trial in hopes of persuading the judge or jury. If you are now on appeal, it means the story needs to be re-adapted based on the facts as the trial court found them, rather than as you told them. Just because the court did not adopt your narrative of the case, that does not mean it adopted the other side's narrative. Often, the judge or jury adopted a narrative somewhere in between. An appeal is your opportunity to examine that new narrative.
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An appellate brief is not the same thing as a trial brief. Not only must every fact be supported by evidence, it must be supported by evidence that was received into the record—and not by evidence the trier-of-fact rejected as not credible. Not only must arguments be made clearly and supported by authority, they must have been made in on the record in the lower court. And the arguments must be made through the appropriate standard of review: de novo, abuse of discretion, or substantial evidence.
And never make uncivil remarks against opposing counsel—and never impugn the trial judge.
Most attorneys know these rules, but often the most briefing faux pas are committed by the most skilled trial attorneys.
We write and consult on briefs, and propose ways to strengthen arguments—as often by subtraction as by addition.
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An effective appeal is more than the sum of various arguments and positions stated in the brief. A winning appeal starts with an understanding of the purpose of the case—the essential justice of the client's objective—and then paring back layer after layer of the litigation to isolate the trial court's key error. The theme of the case will rotate around that error, and every fact and argument will be spokes to which the error connects. The theme of the case, and the error to be correct, should unify every page of the brief, culminating at oral argument.
This cohesive approach to briefing and oral argument positions our clients for the best chances of success.
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An award of fees and costs can be comparable to the judgment itself. If you are considering appealing from a fee or cost order, we can evaluate whether enforcement of the order will be stayed automatically, or whether a bond is required.
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If you are defending the judgment on appeal, consider applying pressure on the appellant by enforcing the judgment. When the judgment is not stayed, enforcement can help put the appellant into a settlement posture. We work with judgment-enforcement specialists who can help evaluate enforcement options, and help honest judgment-debtors protect their assets.
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The most effective oral argument begins by establishing a compelling theme in the briefs. That having been done, an appellate specialist can bring to the appellate courtroom a greater level of confidence and familiarity. Lawyers and judges alike often remark that the appellate court rarely changes its mind based on oral argument. But it does happen. And more often, a compelling oral argument, even when it does not change the outcome, will often cause the court to limit or narrow an unfavorable result. Appellate judges and justices tend to hate canned speeches, and prefer instead to have a conversation with the attorneys. For this reason, we come to the courtroom ready for that conversation.
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Some appeals do not offer any really good outcomes. An appeal after a jury trial might result in an order to conduct the trial again. An appeal from an excessive damages award might result in a judgment only slightly reduced. An appeal from a trial judge's order applying the wrong law may result in an order directing the judge to apply the right law—which the judge will do, and likely to the same result. "Winning" the appeal does not much matter, in these kinds of scenarios. We help you evaluate what a "win" on appeal will mean in your case.
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