First, are you a person who can appeal the trial court’s decision?[2] X Research source To answer yes, you must have been a party to the case at the trial stage. [3] X Research source You cannot appeal on behalf of someone else, for example a friend or relative. [4] X Research source Second, can the decision in your case be appealed?[5] X Research source To answer yes, the trial court must have issued a final judgment. [6] X Research source The final judgment is the decision at the end of your case that decides everything. [7] X Research source It will usually tell you or the other party what they have to do. [8] X Research source You cannot appeal decisions made before the final judgment; you must wait to appeal these issues once the final judgment has been issued. [9] X Research source Third, do you have time for an appeal?[10] X Research source To answer yes, you must be able to draft and file your notice of appeal within a certain deadline. [11] X Research source If you fail to file your notice of appeal before the deadline, your case will be dismissed and you will not be able to appeal. [12] X Research source In California, the deadline to file your notice of appeal varies depending on the type of case you have. For example, if you are a part of a civil case involving an amount less than $25,000, you must file your notice by either: 30 days after you have been notified of the judgment; or 90 days after the entry of the judgment, whichever is sooner. [13] X Research source
Appellate courts can only look at whether the trial court made a legal error and whether that legal error changed the final decision in the case. [14] X Research source For example, an appeal might look at whether a trial court judge applied the wrong law to your set of facts. [15] X Research source Appellate courts do not offer new trials and you will not be able to present any new evidence. [16] X Research source
For example, if you think the judge gave incorrect and harmful jury instructions to the jury, find the judge’s statement of the instructions in the trial record.
An appeal also takes up a lot of time. You will be doing lots of legal research, writing a legal brief, and preparing to argue in front of the court. An appeal can also cause stress on you and your loved ones, and can extend the litigation for many years in some cases. Appellate court costs typically exceed those of the trial court. For example, in California filing a notice of appeal costs $775. It is not unusual for court transcripts to exceed $1,000. Some states have fee waivers in civil cases for individuals with low incomes (most notably California). If you received a fee waiver for your trial court case you should be eligible for one in the appeals courts.
The name of the court that issued the judgment you are appealing; The trial court case number and case name; Your personal information; Whether this is a first appeal or some other appeal; The judgment you are appealing; and Whether you are asking for a copy of the record. [19] X Research source
When you file your notice of appeal, you will be required to pay a filing fee. [25] X Research source The filing fee in California can be as much as $775. 00. If you cannot afford the filing fee, you can ask the court for a waiver. [26] X Research source If you already obtained a fee waiver for your fees associated with your case at the trial level, simply include that fee waiver with the notice of appeal and your fees will be waived. [27] X Research source
As the “appellant” or “petitioner,” you are the one bringing the appeal and will therefore file the first brief. The other party, the “respondent,” will file the response brief. To make sure that you do not miss important deadlines, you may want to place any important dates on your calendar.
Appellate rules can cover things as small as the required font size, page limits, and the number of copies you need. Most appellate rules can be found online at your court’s website. For example, in California, the court website has a link to the California Code of Civil Procedure and the California Rules of Court. [28] X Research source
A designation form simply asks you to identify the documents you will be including in the record. [33] X Research source Therefore, it is important to locate all the documents available from the trial court and to review them to determine if they will be helpful. You must designate the record within a certain period of time after filing your notice of appeal. [34] X Research source In California, you must designate the record within 10 days after filing your notice of appeal. [35] X Research source 10 days is a short period of time so be prepared to spend long hours looking through documents to determine what you want to include in the record.
The transcript will not include any exhibits unless you ask for them (designate them). [37] X Research source There is usually a fee for requesting the clerk’s transcript. [38] X Research source In some cases, it can cost as much as $1,000 to request and receive a copy. If you cannot afford the fee, you can ask for a fee waiver in the same manner as when you filed your notice of appeal.
There is usually a fee for requesting the reporter’s transcript. [41] X Research source If you cannot afford the fee, you can ask for a fee waiver in the same manner as when you filed your notice of appeal.
Go to your public law library. Often courthouses will have a library for public use. Some law schools may also open up their libraries to the public. Find the Reporters for your state. The Reporters are bound volumes of case decisions. They will be stored on a shelf. Either at the beginning or the end of the row of volumes will be an index. The index will tell you which reporters to look into depending on subject matter. Read up on cases involving the issue you are raising on appeal. Try and find cases that discuss the same issues you are bringing up, then try and compare or contrast your case to the cases you are finding. Do online research. Some states may have cases published online. Visit the website for your state’s Supreme Court. If they are publishing opinions online, there should be a link from that website to the opinions.
For example, a case citation might look like this: Jones v. Bethencourt, 253 S. W. 2d 455 (Ky. 1997). In the example, the case name comes first, in italics. You can find the case name from reading the opinion; it should be the first thing stated. “253” is the volume of the reporter. “S. W. ” is the name of the reporter, with “2d” designating its second edition. “455” is the page number of the legal rule you cited. In the parentheses, you list the court (here, the Kentucky Supreme Court) and the year the case was decided. There are many variants, depending on whether you are citing a statute, an intermediate appellate court, or a federal court. To get a better handle on these many variations, simply read the opinions. Appellate courts cite to other cases in their opinions. You should follow as best as you can their citation format.
Identify the type of case you are appealing. [45] X Research source For example, if you are appealing a tort case finding you liable for negligence, say so. Specify the judgment you are appealing. [46] X Research source Make sure you include the name of the trial case and that case number so the appellate court can identify the trial court ruling. State that the judgment is final and appealable. [47] X Research source Explain the standard of review. Depending on the type of case you are appealing, and what the issues are on appeal, the appellate court will use one of three standards of review. The abuse of discretion standard, which is used when you are appealing the judge’s use of discretion. [48] X Research source The substantial evidence standard, which is used when you think the trial court did not have enough evidence to rule on an issue in the manner the court did. [49] X Research source The de novo standard, which is used when an appellate court is reviewing only questions of law. [50] X Research source Include a brief summary of the most important facts in your case. [51] X Research source You must stick to facts readily available in the record that has been created. Do not add facts that are not in the record. You should actually support each reference to a fact with a citation to the record. [52] X Research source This will help the appellate court make sense of your argument. Make your legal arguments. When you do so, support each of your points with coherent arguments and a citation to some legal authority. [53] X Research source Indicate the relief you want. [54] X Research source
There is usually no fee required when you file your brief.
Oral arguments are not a chance for you to read a prepared statement or restate what has already been told in your brief. [65] X Research source An oral argument is your chance to clarify your brief, tell the judges what you think i most important, and to answer questions. [66] X Research source
Check the laws you referred to in your brief and make sure nothing has changed. [67] X Research source Review the record and make sure you know it inside and out. [68] X Research source The appellate judges may ask you questions about anything in the record and you need to be prepared to answer. [69] X Research source Prepare your key points in outline form. [70] X Research source Do not become to rigid in your performance because you never know when a judge will interrupt you with a question. Practice your oral argument with someone and have them interrupt you. [71] X Research source This will help you get an idea of what it is like to speak in front of a panel of appellate judges.
Remember not to discuss anything that is not in your brief or in the record.
However, the highest courts (either state or federal) usually can choose to take cases and are not required to take appeals. Therefore, even if you do continue to appeal, prepare yourself for the court declining to hear your case. It is also highly unlikely that you can get an appeal reversed. If you have been proceeding pro se, you should meet with an attorney to discuss whether a second appeal is even worthwhile.
If you lose, then the trial court’s judgment against you will stand.
Additionally, even if you won your appeal, keep in mind that proceeding to trial is a risk and you could lose, regardless of whether you won the appeal or not.
