This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

Navigating Appeals

By Gary A. Watt Ben Armistead | Apr. 16, 2018

general / Appellate Practice

Navigating Appeals

Appeals can involve unfamiliar terrain for trial lawyers, and when everything is new, it is easier to miss critical landmarks. For those embarking into uncharted water or just nurturing an appeal through initial filing, take along a map and compass: the California Rules of Court for civil appeals. The rules provide the answer to virtually every navigational question that can arise during an appeal. In this article, a few of the general landmarks contained in Title 8, Division 1, Chapters 1 and 2 are visited in the hope that uninitiated appellate voyageurs can avoid a shipwreck early in the journey.

Filing the Notice of Appeal

Failure to file a notice of appeal on time is fatal. Reread the prior sentence because lawyers thrive on exceptions to rules, but there are no exceptions to this rule. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc., 15 Cal. 4th 51, 56 (1997) (timely filing is an absolute prerequisite to the appellate court power to take up the appeal). Rule 8.104(a)(1)(A)-(B) provides that "a notice of appeal must be filed on or before the earliest of" 60 days after the superior court clerk or any party serves the appealing party with "a document entitled 'Notice of Entry' of judgment or a file-endorsed copy of the judgment." Certain enumerated motions can extend the time to file the notice of appeal. Rule 8.108. A notice of appeal is filed in the superior court. Rule 8.100(a)(1).

Compass Points: Note "the earliest of" language in Rule 8.104 which anticipates that one may receive notice from the clerk and from one or more parties -- so don't go by the later arrival. Note that a party can trigger notice against itself by serving notice on others. Rule 8.104(a)(1)(B). Be aware that something labeled "notice" is not even required, a file-endorsed copy of the judgment is sufficient. And, these time limits also apply to appealable orders "if the appeal is from an appealable order." Rule 8.104(e). Finally, note for those relying on "extended time" under Rule 8.108 -- it is a veritable maze of untimely appeals and tenders to malpractice insurers.

Designating the Record

The appellant must designate the record within 10 days after filing the notice of appeal. Rule 8.121(a). The "record" consists of pertinent written documents and any reporter's transcripts of oral proceedings (trial, hearings). Rule 8.120(a)-(b). The record designation is filed in the superior court, and a Judicial Council form is fairly easy to use. A clerk's transcript (of the written documents) can be designated (Rule 8.122), but the required and requested documents must be itemized on the designation form. Alternatively, one may elect to file an appellant's appendix (Rule 8.124), a do-it-yourself clerk's transcript, which can be filed when the opening brief is filed. Whatever route taken, the record must include certain enumerated documents. Rule 8.122(b)(1)(A)-(F); 8.124(b)(1)(A). As for reporter's transcripts, the designation "must specify the date of each proceeding to be included in the transcript." Rule 8.130(a)(1). A statutory deposit for preparation of the reporter's transcript is required when designating the record. Rule 8.130(b).

Compass Points: Be wary of choosing an appendix over a clerk's transcript in cases involving large records. A lot of time is required to obtain/organize file-endorsed documents in chronological order, create the proper tables of contents (see Rule 8.124(d)(1); 8.144(b)(5)(a)), make sure the volumes are e-filing compliant, etc. For lawyers lacking access to support, the initial allure of avoiding the fixed cost of a clerk's transcript may quickly dissipate when the time and care necessary to prepare an appendix hits home. Note that no deposit is immediately required when designating a clerk's transcript; the superior court will send notice of the estimated cost after it receives the designation. Rule 8.122(c). When designating the reporter's transcripts, minimize the statutory deposit by touching base with the court reporter(s) first. Sometimes a much lower deposit amount results. Parties can actually borrow a copy of the record instead of purchasing one, but be wary of the short time period for making such requests ("within 20 days after the record is filed in the reviewing court"). Rule 8.153(a).

Appellate Briefing Deadlines

Rule 8.212 provides the standard briefing deadlines on appeals, and Rule 8.216 provides a process for briefing schedules in cross-appeals. Under Rule 8.212: The opening brief is due 40 days from the date the clerk's transcript, or reporter's transcript in cases designating an appendix, is filed (70 days if an appendix has been designated and no reporter's transcript is designated); the responding brief is due 30 days after the opening brief if filed; and the reply brief is due 20 days after the responsive brief is filed. Rule 8.212(a)(1)-(3). Perhaps the greatest luxury appellate lawyers enjoy is ample time to file the briefs. The parties can stipulate to a maximum of 60 days of extensions per brief (in one or more such stipulations), and if in correct form, such stipulations are good on filing. In addition, whether stipulations are obtained or not, parties can seek extensions by application to the Court of Appeal. Rule 8.212(b)(1)-(3).

Compass Points: When applying to the appellate court for extensions of time, take a look at Rule 8.63's factors establishing good cause. When expressing good cause for an extension, pay attention to the factors and cite to them. There is a Judicial Council form for extension of time applications. As to briefing deadlines, under Rule 8.220, "if an appellant's opening brief or respondent's brief" is not filed on the calendared due date, then the clerk "must promptly notify the party in writing" that the brief must be filed "within 15 days after the notice is sent." So under Rule 8.220, "there is a 15-day grace period; a party need not file for an extension or relief from default if the brief can be filed within the time prescribed." Black Historical Society v. City of San Diego, 134 Cal. App. 4th 670, 675 (2005). However, note the absence of any reference to a reply brief in Rule 8.220 -- there is no grace period for such briefs.

Appellate procedure is far from simple. The handful of rules discussed here are only the starting point. And the State Bar has made appellate specialization part of its certification programs -- a red flag for the inexperienced. But for those contemplating setting sail without seasoned appellate counsel, the Rules of Court can provide for smoother seas or at least, calmer nerves. Of course, navigation should be left to the experts: the certified appellate specialists. But for those who must set sail alone, consult the rules early and often. That way, the first appellate voyage may not be the last.


Ben Armistead

Related Tests for Appellate practice

participatory/Appellate Practice

Dorf on Reinhardt; Second Amendment

Apr. 6, 2018

Constitutional law scholar and former clerk for the late Liberal Lion Stephen Reinhardt, Michael Dorf (Cornell Law School), reflects on Reinhardt's tenure and legacy; then, he details the current, somewhat uncertain Second Amendment doctrine that any post-Parkland gun control measures would meet.

participatory/Appellate Practice

The Power to Declare (Trade) War

Mar. 30, 2018

Timothy Meyer (Vanderbilt Law) explains how Congress' near-plenary power over international trade gradually shifted to the executive branch, and argues that domestic economic and political conditions recommend a return to the Constitution's original, legislative-centered trade power alignment.

participatory/Appellate Practice

'NIFLA v. Becerra' Panel

Mar. 23, 2018

Four amici from the First Amendment challenge to a California abortion disclosure law discuss what they consider the case's most salient constitutional points: the (non-existent?) Professional Speech Doctrine; potentially diluted strict scrutiny; the ubiquity of disclosures like California's, and the sweeping implications were it felled; and what is meant by 'informed consent?' Guests include Robert McNamara (Institute for Justice), Brianne Gorod (Constitutional Accountability Center), Steven Aden (Americans United for Life), and John Baker (Greene Espel)

participatory/Appellate Practice

Sanctuary and Supremacy

Mar. 16, 2018

Professor Josh Blackman (South Texas College of Law) takes measure of the DOJ's constitutional arguments in its suit challenging California's laws protecting undocumented immigrants; plus, Gerald Maatman (Seyfarth Shaw) assesses Tinder's arguments that its variable pricing model isn't a civil rights violation, as the dating app company seeks Cal. Supreme Court review.

participatory/Appellate Practice

Constitutional Right to Facebook Posts?

Mar. 9, 2018

With social media evidence increasingly used at criminal trials, do defendants have a constitutional right to subpoena relevant online records while building their case? Don Landis (L/O of Donald Landis) says yes, as the California Supreme Court mulls the question. Plus, Steve Hirsch (Keker, Van Nest & Peters) unpacks the high court's decision on who owns the rights to hourly work when law firms dissolve.

participatory/Appellate Practice

Speech-Free Polling Places?

Mar. 2, 2018

SCOTUS considered Wednesday whether concerns over voter intimidation and polling place decorum justify a broad Minnesota prohibition against political apparel at the ballot box. Dan Weiner (Brennan Center for Justice) says the law should stand, or perhaps be narrowed to alleviate overbreadth concerns. Plus, reporters Chase DeFeliciantonio and Nick Sonnenburg catch us up on recent immigration filings.

participatory/Appellate Practice

Permissible Admission?

Feb. 23, 2018

May a capital defense counsel constitutionally concede his client's guilt, against the client's wishes, where such an admission may be the best chance at avoiding the death penalty? Amicus Albert Giang (Boies Schiller Flexner LLP) argues that the U.S. Supreme Court should answer that question in the negative, and also discusses the tricky line-drawing problems this case presents the high court.