If you are considering bringing an appeal, there are important deadlines and detailed procedures that must be followed to the letter. Understanding the structure of the courts, the different methods for seeking review, and the various standards of review is of the utmost importance. Time is of the essence, and one missed deadline can be fatal to an appeal. Working with an appellate attorney who has extensive experience litigating appeals in the courts of Washington State and is well-versed in Washington’s Rules of Appellate Procedure can be the difference between success and failure on appeal. Below is a summary of the key deadlines and basic steps along the path of an appeal.
Structure of Washington Appellate Courts
Most cases appealed from the state’s trial courts (known as superior courts) go directly to the Court of Appeals. The Court of Appeals has the authority to take various actions; it can reverse the lower court’s decision, send (“remand”) the case back to the lower court, modify the decision, or affirm it.
The Washington Court of Appeals is divided into three divisions, each of which serves a geographic area of the state. Division I, located in downtown Seattle, has ten judges. Division II, located in Tacoma, has seven judges. Division III, located in downtown Spokane, has five judges.
Some cases bypass the Court of Appeals and may go directly to the state’s highest court, the Supreme Court. Examples of issues meriting direct Supreme Court review include actions involving:
A state officer;
A lower court ruling that a statute or ordinance is unconstitutional;
Conflicting statutes or rules of law;
An issue of broad public interest requiring a prompt and ultimate determination; or
Imposition of the death penalty.
Difference between Review as a Matter of Right and Discretionary Review
There are two basic methods for seeking review of trial court decisions. The first method is review as a matter of right, referred to as “appeal.” The second method is review by permission of the court, called “discretionary review.” The Rules of Appellate Procedure list 13 types of orders that may be appealed by right, including:
Final judgment in an action;
Juvenile court disposition;
Termination of parental rights;
Order of Incompetency;
Order of Commitment; or
Order on motion for a new trial.
The Rules provide that “unless otherwise prohibited by statute or court rule, a party make seek discretionary review of any act of the superior court not appealable as a matter of right.” This is a ‘catch-all’ provision, meant to include any superior court order that does not fall into the basket of 13 appealable orders.
Discretionary review will only be accepted if one of the following can be shown:
The trial court committed an obvious error which would render further proceedings useless;
The trial court has committed probable error and the decision of the court substantially alters the status quo or substantially limits the freedom of a party to act;
The trial court has so far departed from the accepted and usual course of judicial proceedings as to call for review by the appellate court; or
The trial court has certified, or all parties to the case have agreed, that the order involves a controlling question of law as to which there is a substantial ground for a difference of opinion and immediate review of the order may materially advance the ultimate termination of the case.
Unlike an appeal by right, a party seeking discretionary review must ask (or “move”) the court of appeals to accept the case within 15 days after filing a notice seeking review. The court may refuse, agree to review the entire case, or specify the issue or issues as to which review is granted. “Discretionary” review means just that -- it’s entirely up to the Court of Appeals!
Important Deadlines for Appeals
The first step in the appellate process is the filing of a notice of appeal or notice of discretionary review. Generally speaking, either notice must be filed in the trial court within 30 days after the decision being appealed is “entered,” meaning when it is filed with the clerk of the court. In certain limited situations, the 30-day time limit will be extended, such as when one of the parties to the case dies or becomes legally incompetent and needs to be substituted by a representative, another party has filed a notice of appeal or notice of discretionary review, or the applicable statute provides for a different time period.
The next step is compiling the “record for review” and sending it the Court of Appeals. The record for review is the “evidence” the appellant will rely on to convince the Court of Appeals that their argument should carry the day. The record, generally speaking, exists in two parts. The first part is the “clerk’s papers,” which are all the essential pleadings, written testimony, exhibits, and other documents filed with the superior court. The second is the “report of proceedings,” which is a transcript of the oral testimony and argument heard by the superior court.
An appellant generally must begin this record-forwarding process within 30 days of the date the appeal was filed or the date the court granted discretionary review. After the record is set, next comes the brief-writing stage. Within 45 days after the report is filed, the appellant must file a brief setting forth a persuasive argument, based on the facts and relevant law, for why the trial court’s decision was wrong and should be reversed or modified -- all in a maximum of 50 double-spaced, large-margined pages. The opposing side (referred to as the “respondent”) then has 30 days to file a responding brief. 30 days later, the appellant may file a “reply” brief, replying to the arguments in the respondent’s brief. The Appellate Rules state the the reply brief is optional, but experienced appellate practitioners will almost always recommend that the appellant file a reply. After all, why pass up the opportunity to have the last word in an argument?
The next step is oral argument before a panel of three appellate judges, if permitted. Opportunities for oral argument are rare, with most appeals decided “on the briefs,” that is, without the chance to discuss the appeal live and in-person with a group of judges. The court will then issue its decision, called on “opinion.” There is no time limit for the court to do so; some opinions are issued in 6 or 8 weeks, while others may take more than a year.
The rarity of oral argument places utmost emphasis on the brief-writing stage. This is where working with an experienced appellate attorney can make the difference between success and failure on appeal. Busy trial attorneys may, mistakenly, approach an appeal by simply recycling trial court arguments and offering them to the appellate courts. Appellate judges uniformly classify this type of brief as a “substandard product.” As the California Court of Appeals has stated, “rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.” In other words, the rhetorical skills required to convince a fact-finder at trial are far different those those necessary to succeed on appeal.
If the decision is unfavorable to the appellant, there are several options to consider, including filing a:
Motion to reconsider (must be filed within 20 days); or
Petition for review by the Supreme Court (must be filed within 30 days)
Basic Path of an Appeal in Washington State
The process of appealing a case begins with the notice of appeal or notice of discretionary review, and ends with the court’s decision. In between, the typical path includes compiling the record, exchanging briefs, arguing the case before an appellate panel, and awaiting the court’s decision. There may be twists and turns along the way, in the form of different procedural motions for, among other things, extensions of time, staying the trial pending appeal, accelerating review, and attorneys fees. The court may also schedule, on its own or at the request of the parties, a conference to discuss the possibility of settling the case, rather than going forward with the appeal. Experienced appellate practitioners are familiar with each of these twists and turns and can help busy trial lawyers and their clients navigate the unique appellate process.
How I Can Help You
If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.
Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.
The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.