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FAQ Guide to Civil Appeals
This is a general guide for clients wishing to know more about the civil appeal process. It is not intended as legal advice concerning your particular case. Please contact us for a consultation if you need legal assistance.
What is an Appeal?
An appeal is a legal proceeding where a higher court, "Court of Appeal," reviews an order or judgment from the trial court (i.e., the state Superior Court or the federal District Court). An appeal is not a new trial. The Court of Appeal does not hear testimony from witnesses or consider new evidence. Instead, the Court of Appeal relies on the Appellate Record to determine if the order or judgment is lawful. The primary purpose of an appeal is to ensure that the judge and/or jury properly followed and applied the law to your case.
Who is entitled to appeal?
Only the party who is adversely affected by the judgment or order can appeal. That party is called the Appellant. The other party - the one who benefits by the order or judgment - is called the Respondent in state courts and Appellee in federal court. The Appellant normally has the burden of proving to the Court of Appeal that the judgment or order should be reversed or modified.
What can be appealed?
Generally speaking, any judgment issued by the trial court can be appealed. Sometimes there will be a partial judgment that does not dispose of all aspects of a case; those can be appealed only under special circumstances. Some orders (i.e., rulings made by the trial court before the trial is completed) are also appealable, but most orders cannot be appealed until there is a judgment. Sometimes orders can be challenged by a special appellate procedure called a Writ Petition. The major difference between an appeal and a writ petition is that the Court of Appeal can - and usually does - deny the Writ Petition without considering the issues raised.
Is the judgment or order enforceable during the appeal?
Whether a judgment or order can be enforced during the appeal is a complex matter. Some types of judgments and orders are automatically stayed during the appeal period. Most of the time, however, the Appellant must post a monetary undertaking or take other steps in order to secure future performance of the judgment in the event the appeal is lost. Unless these steps are taken, the judgment or order can be enforced by the other party. Your appellate attorney can advise you about the enforceability of the judgment or order during the appeal, and how to perfect a stay if you are the Appellant.
How long does the appeal take?
The time between filing the Notice of Appeal and the appellate court's issuance of its written decision depends on many factors, some of which are under the control of the parties and some of which are not. Some appellate courts have backlogs, for example, while others strive to achieve a speedy decision. Generally speaking, the appeal process can run from nine months to two years or even longer. Your appellate attorney will be able to advise you about the likely time frame for your particular case.
LAW OFFICE OF HERB FOX