How to successfully navigate the appeals process

Susan Handelman, partner, Ropers Majeski Kohn & Bentley PC

Whether your day in court resulted in a jubilant victory or disappointing defeat, the verdict may not stand as thousands of cases are appealed in California every year.

Given the complexity of appellate law and the uniqueness of the process, savvy executives don’t wait until the trial is over to devise a winning strategy.

“Any company that is concerned about a trial outcome, good or bad, needs to be thinking about the possibility of an appeal from the outset,” says Susan Handelman, a partner at Ropers Majeski Kohn & Bentley PC. “It can hurt your chances if you wait until the last minute to understand the process or seek expert advice.”

Smart Business spoke with Handelman about the appeals process and the benefits of proactive preparation.

When is it possible that a company will face an appeal?

Once a judgment is entered in the trial court, the losing party has the ability to seek a review of the judgment by a panel of appellate judges. Appellants often cite a procedural error or the way the law was applied by the trial judge or jury as the impetus for their appeal.

After reviewing written submissions from both parties, the appellate court has the option to affirm, modify or overturn the lower court’s verdict, or even order a new trial. Because it puts the original outcome back up for grabs, this can mean that an appeal can be, for both parties, a truly crucial interaction with the court system.

How does the process differ for appellants and respondents?

Appellate court proceedings are very different from those in trial courts, given that the judges focus on the actions of the lower court instead of hearing lengthy factual arguments and witness testimony to reach a decision.

The appellant is responsible for initiating the appeal and generally has the burden of proving that a prejudicial error was made in the trial court. The respondent must validate their win by providing a thorough and accurate accounting of the trial and must legally and factually support the efficacy of the original decision.

Since the appellant files only two written briefs and the respondent gets only one brief to make their case, it’s imperative that the attorney’s logic, reasoning and legal arguments resonate with the appellate judges.

How long does the appeal process take and what’s involved? 

An appeal can take anywhere from 18 to 30 months once the appeal is filed. If the parties don’t want to wait, they may have an opportunity to settle their differences in the interim by participating in mediation that is fully or partially funded by the court.

Having an appellate attorney who knows the ropes is critical because, other than briefing, the only presentation to the appellate panel is an oral argument that lasts just 30 minutes and must be on point.

Since success in appeals court hinges on different issues and tactics than a traditional trial, some companies take a long view and hire an appellate specialist from the outset to monitor important litigation.

Is the appeal final or are there more options?

The decision made by the appeals court isn’t necessarily the end of the road. The party that lost can request a rehearing by the appeals court and they may try to appeal the decision all the way up to the California or U.S. Supreme Court.

However, it takes considerable time, money and expertise to continue the appeals process and you may run out of options, since the high courts don’t hear every case.

The bottom line is that waiting and seeing is not the most viable strategy when an appeal can be a real game changer.

Susan Handelman is a partner with Ropers Majeski Kohn & Bentley PC. Reach her at (650) 780-1759 or [email protected]

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