The Appellate World
Appellate courts are different from trial courts. The rules are different. The process is different. The goals are different.
As the appellate courts' missions differs from that of trial courts, so do the skills required of appellate practitioners differ from those demanded of trial lawyers. The ability of trail attorneys to "think on their feet" and to relate interpersonally with witnesses, jurors and opposing counsel has little in common with the skill of appellate attorneys in combing trial records for error, construing well-honed written legal arguments, and following the sometimes arcane rules and protocol of appellate procedure. As a consequence, an attorney skilled in litigation practice can be a novice in the realm of appellate advocacy.
Appellate practice is governed primarily by judicial rules of procedure. Despite the best efforts of the drafters, these rules may remain obscure to attorneys who do not practice regularly in he appellate setting. Even more challenging to practitioners is understanding how to approach the appellate court, whether the California Court of Appeal or the Supreme Court, that is, how to focus and present the case in both written and oral argument to be successful in the appellate forum.
- Kathryn M. Werdegar
Associate Justice
California Supreme Court
Contrary to popular belief, the appeal is not an opportunity to retry the facts of the case. The appellate court will neither reweigh evidence nor redetermine credibility or other fact-based questions. Except in rare cases, the appellate court hears no evidence and takes no testimony, nor will it consider evidence that was not presented to the lower court. In other words, the appellate panel will not permit the parties to introduce new evidence for the first time on appeal. The reason for this rule is the appeal is not a second chance to try the case. If the party could have presented additional evidence in the trial court but did not, the court of appeal usually will not consider it.
Viewing the presentations, articles, other content, or contacting me/you through my web site does not establish an attorney client relationship. I will not file a notice of appeal nor calculate the time in which a notice of appeal must be filed by until I have received a signed retainer agreement. Warning, the time from which to file a notice of appeal is statutory. The time in which you have to appeal may pass between when you first contact me and when an attorney client relationship is formed upon when I receive a signed retainer agreement . Until a retainer agreement is signed and received by me, it is YOUR responsibility to insure your appeal is filed within the statutory period. The articles on this website are not legal advice and should not be used in lieu of an attorney. The accuracy of articles and information on this site cannot be relied upon.