An appellant initially must complete the preliminary stage in the appeal. In a state court appeal, an appellant must timely file three notices and forms (and pay the applicable fees): (1) a notice of appeal; (2) a notice designating the record on appeal (the clerk’s transcript or an appendix and the reporter’s transcript); and (3) a civil case information statement. Some appellate courts also require the filing of a case screening form that will assist the court in determining whether the case should be referred to mediation. If I represent the appellant, I usually prepare the first two documents for the signature of trial counsel because those two documents must be filed in the trial court. I prepare the last two documents for my signature and file them, along with an association or substitution of counsel, in the Court of Appeal.
The briefing process begins after the completion of the preliminary stage and the filing of the record on appeal. In a typical appeal without a cross-appeal, the parties file three briefs: (1) Appellant’s Opening Brief; (2) Respondent’s Brief; and (3) Appellant’s Reply Brief.
In preparing an Appellant’s Opening Brief or a Respondent’s Brief, I review and summarize the record, perform legal research, and draft the brief. If I represent an appellant and have prepared an opinion letter, I follow the game plan set forth in the opinion letter when I prepare the opening brief. An Appellant’s Reply Brief addresses the main factual or legal points presented in Respondent’s Brief.
Before I file any appellate brief, I always send the final draft to the client and trial counsel (if trial counsel still wants to be involved in the appeal) for review. After the client reviews the brief, I answer any questions and respond to any comments that the client has about the brief. I also make any corrections that the client or trial counsel proposes, unless the suggested changes seem inappropriate.
After the close of briefing, the next step is the oral argument, if either party requests it in a state court appeal (the federal appellate court decides on its own whether it will allow oral argument). In civil appeals, the parties almost always request oral argument. The attorneys for both sides present an argument before a three-justice panel and answer the questions posed by the court. Each side is allowed a maximum of 30 minutes, although most oral arguments last 10-20 minutes. In state appellate courts, the court issues its decision within 90 days of the oral argument.
Generally, the appellate process lasts, from the date of the filing of the notice of appeal to the date of the filing of the appellate court’s opinion, 18-24 months.