I Filed a Notice of Appeal, Now What?
by Jeffrey Lewis
The process of pursuing a civil appeal in California can be a bit of a mystery for the first time litigant or trial lawyer unfamiliar with appeals. This post is the second in a series on explaining the process of a civil appeal. After a notice of appeal is filed, the Court of Appeal will require the appellant to complete and file a civil case information sheet. By requiring parties to attach the order appealed from and to answer questions about the dates when the order was entered and when the notice of appeal was filed, the information sheet acts as a screening process to weed out untimely or improper notices of appeal. Assuming that the appeal proceeds, the next step in the process is the designation of the record. For most civil appeals in California, the normal record consists of the documents filed with the trial court and the reporter’s transcripts. An appellant notifies the trial court about what to include in the record on appeal by filing a designation of record. The judicial council form, APP-03, can be used for this process.
The documents filed with the trial court are presented in bound, booklet form to the Court of Appeal. The appellant can designate a Clerk’s Transcript, by providing the trial court with a list of all items to be included. If the list is incomplete, the respondent can counter designate the missing documents. Alternatively, the appellant can choose to prepare an appendix of documents themselves and serve that appendix at the same time as the opening brief. Some appellate practitioners prefer to use an appendix so that they decide the contents of the record on appeal at a later time, closer to when the briefs are submitted. If the appellant’s appendix is incomplete, the respondent can prepare and file a respondent’s appendix at the time the respondent’s brief is filed. Whichever method is used, a designation of the record needs to be filed with
Reporter’s Transcripts. In addition to the documents filed with the trial court, the appellant can include in the record the word for word transcriptions of any hearings or trials. An appellant can designate which hearings (or trial dates) should be transcribed. If the appellant’s list is incomplete, the respondent may counter designate with additional hearing dates. Sometimes, the failure to include a reporter’s transcript can be fatal to an appeal. Sometimes, where issues of pure law are at issue, there is less of a need for reporter’s transcripts. Some courthouses no longer automatically provide court reporters for civil matters and if the parties do not pre-arrange for the presence of a privately paid for reporter, no transcript can be prepared. If some record of the hearing is needed for an appeal, an appellant must then proceed by way of an agreed statement under Rule 8.134 (where the parties agree to a summary of what happened at the hearing in lieu of a reporters transcript) or a settled statement under Rule 8.135 (where the trial court approves a summary of what happened at the hearing in lieu of a reporter’s transcript). Whichever form of record is elected by the appellant, the trial court should be informed by way of the designation of record on appeal.
Lending the Record. If you represent the respondent on an appeal and you are concerned about the cost of purchasing the appellate record, you have the option to borrow the appellate record from the appellant. Rule of Court 8.153. At the time the record on appeal is filed, the respondent simply notifies the appellant of the request to borrow the record. At the time the opening brief is filed, the appellant must transmit the record to the respondent. The respondent then returns the record at the time the respondent’s brief is filed. This leaves the respondent without the benefit of the record thereafter but can save a respondent substantial expense.
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ or appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation. If you are contemplating filing or responding to an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel. Don’t wing it, win it.