Appeals can be tricky. They are expensive to litigate and difficult to win. They also take time, particularly in the Ninth Circuit, which is the busiest Court of Appeals in the United States. But, appellate practice can be rewarding, particularly if you can avoid common pitfalls and understand your chances on appeal before you get started.
Here are three tips.
1. Confirm That You Can Appeal
Before you appeal, or advise your client to appeal, confirm that the unfavorable ruling you want to challenge is in fact appealable. Although this sounds obvious, and incredibly easy, it is one of the most overlooked issues on appeal. Under Federal Rule of Appellate Procedure 4, an appellant has 30 days to file a notice of appeal after a judgment or appealable order is entered. Compared to California’s Rule of Court 8.104, which requires an in depth analysis of what constitutes “notice entry,” and how the differs from a “file-stamped copy of the judgment”—both of which phrases have been the subject of litigation and heated debate—the federal rules are relatively straightforward. That said, because filing the notice of appeal confers jurisdiction upon the reviewing court, failure to file a timely notice ends the appellate process before it starts. If that doesn’t terrorize you, try deciphering the appealability rules involving collateral, also called Cohen, orders or the “death knell” doctrine. If death is in the title, it cannot be good. When in doubt about appealability, research. When still in doubt, research and consider whether you should file a petition for writ of mandate or prohibition at the same time you file your notice of appeal. Be warned, if you think it is difficult to obtain a writ from the California Courts of Appeal, obtaining a writ from the Ninth Circuit may coincide with the appearance of a blue moon.
2. Ask Whether You Should Appeal
Once you figure out if you can appeal, figure out if you should appeal. Consider the basic question first: does the benefit of a favorable appellate outcome outweigh the burden of attorney fees, court costs, supersedeas bonds, and record preparation? And consider too that in the Ninth Circuit the most recent statistics, from 2013, show that the median time to complete an appeal was more than 14 months, compared to the circuit court average of 9 months.
If you have the time and money to go forward, consider how likely it is that you will be successful on appeal, and what it means to be successful. Though statistics vary, most suggest that appellants are successful in obtaining a complete reversal 25% of the time, or less. Those statistics do not account for all of the different ways you can win on appeal without a complete reversal. They also do not account for the fact that a “win” on appeal may mean a re-trial or years more litigation at the district court level, nor do they differentiate between different types of cases. Often, your likelihood of success is closely tied to the applicable standard of review and quality of the district court record, two things that usually cannot be improved at the appellate level.
3. Evaluate the Record in Light of the Standard of Review
To help you determine what standard of review applies, the Ninth Circuit publishes several useful guides, all of which are available on the Court’s website. Though these guides will not answer all of your questions, they are often a good starting point. In many cases, however, the applicable standard of review will be a matter of debate, particularly as many standards have subtle differences or layers. Generally, for appellants, the most favorable standard of review is de novo, or independent, meaning the reviewing court will examine the order or judgment without giving much, if any, weight to the district court’s reasoning. Questions subject to de novo review are typically legal questions, involving interpretation of statutes, contracts, or application of law to undisputed facts. Where your issues involve disputed facts, they are typically reviewed for clear error, which is similar to California’s “substantial evidence” review and requires that an appellant demonstrate the district court committed “clear error” in making a particular factual finding. The standard is similar to the “abuse of discretion” standard, which requires an appellant to establish that no reasonable judge could have reached the same conclusion that the district court reached in the matter at hand.
You should consider the applicable standard of review before you file your appeal, and should do so while looking at the record. Look to see if the issues you want to raise on appeal were “preserved” for review, meaning that they were raised below and not waived or forfeited. If your issues are not purely legal, look to see if you can realistically establish clear error or an abuse of discretion. Neither of those standards is easy on appellants, particularly given the strong preference for affirming the district court.
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The most difficult part of appellate practice is recognizing how greatly it differs from trial practice; the deadlines, issues, and briefing style are different, and the procedural rules are less forgiving. But, understanding those differences prior to filing your appeal will make the process easier and increase your chances of success.