LAW OFFICE OF HERB FOX

While trial counsel need not (and often should not) act as appellate counsel, they should steer their clients in the right appellate direction. Here are seven important points your clients should know about the appellate process:


Clients often confuse an appeal with a new trial. It is not. Appellate courts will normally not reconsider the old evidence, hear new evidence, or decide a case on the evidentiary merits. Nor will appellate courts normally entertain claims that a witness lied or that the judge was "unfair," thus disposing of two typical reasons why clients believe they have a good appeal. 

Instead, the primary purpose of appellate review is to determine whether the trial court committed a prejudicial error of law. And here's the rub: it's not sufficient to show that the trial court erred, because not all errors of law are prejudicial. Trial proceedings are rarely perfect, and minor errors usually do not warrant reversal on appeal. The appellant must also demonstrate that but for the error, the result would have been different.


It is usually prudent to wait for judgment before seeking review. Filing an interlocutory writ petition is often – but not always - a waste of time and money.    The decision to spend resources on a writ petition – unless it is a statutory writ for which there is no post-judgment review – should be made carefully and strategically.


In general, the "one final judgment" rule allows only one appeal from the judgment that disposes of the entire action, within which all interlocutory orders and issues can be raised.

At the same time, counsel must be careful. Some interlocutory orders are made appealable by statute, such as orders an anti-SLAPP motions (Civ.Pro. §425.16(i); orders granting or denying injunctions (Civ. Pro. §904.1(a)(6); 28 USC §1292(a)(1)); and most Probate orders (Probate Code §1300 et. seq.).  Other interlocutory orders can be made appealable by leave of court (see, e.g., Family Code §2025; Federal Rules of Civil Procedure 54(b)). Still other interlocutory orders can only be reviewed by a writ petition, such as motions to disqualify a judge or to approve a good faith settlement (Civ. Pro. §§107; 877.6). And a pre-trial order that results in judgment for or against one of several co-defendants might be appealable. Failure to timely seek interlocutory review in many of these situations will waive your right to review of these orders later.​

Winning isn't everything. A prospective appellant must be advised that winning the appeal usually does not mean winning the case. Although appellate courts can enter judgment in favor of the appellant (Civ. Pro. §906; 28 U.S.C. § 2106), they rarely do so. If a court of appeal finds reversible error, it will usually remand for a new trial - a foreboding prospect for many litigants. On the upside, both sides might abhor the cost of a new trial, and the formerly prevailing party's expectations might be deflated by the reversal. This all creates fertile ground for settlement.

And speaking of money... The good news is that the price of an appeal is typically much less than that of the trial. To the appellant, an appeal may cost between 20 to 50 percent of that spent on the trial, depending on the nature and substance of the case. The cost to the respondent or appellee is usually less, in light of the appellant's burdens and the appellate court's presumptions. If state or federal Supreme Court review is a possibility, however, all fee projections are off.

But on appeal, as everywhere, clients get what they pay for. Appellate briefs are not trial-level points and authorities with a new caption. Appellate practice "entails rigorous original work in its own right." (In re Marriage of Shaban (2001) 88 Cal.App.4th 398).

Good appellate counsel scours the record; re-evaluates the evidence; independently researches the law; identifies the proper standard of review; locates the errors; assesses the prejudice; and prepares a tight, concise and convincing brief that drives home in a few sentences the arguments that trial counsel may have spent years developing. All this, like a short letter, takes time.

Take a deep breath, but don't hold it in. Appeals take a long time, even in the quickest courts. In the state appellate courts, the median time between the filing of a civil Notice of Appeal and the filing of the decision ranges from one to two years. With the 9th Circuit, the median time for an appeal is 14 to 16 months. Some civil appeals take as long as three years.


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Of the many civil appeals that Herb Fox has litigated through to a final written opinion, more than a dozen have been published. Two of these cases were accepted for review and resolved by the California Supreme Court. To read the full text of these opinions, please click here.

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