Civil Appeals in Washington

What rulings can be appealed?

In general, a litigant must wait for a final judgment before she has a right to appeal. For example, in a family law case, the final rulings regarding a parenting plan, division of property, child support, and maintenance may be appealed. Under some circumstances, it is possible to seek review of a preliminary court ruling, but the Court of Appeals is not required to grant review.

When is an appeal a good idea?

This is a very difficult question which can only be answered on a case-by-case basis. David has prepared some detailed guidelines for assessing appeals in family law cases. Some basic principles apply to nearly all appeals.

First, the appellate court will generally defer to the trial court’s findings of fact. For example, if the trial court believed the testimony of one witness over another, it is not likely that a court of appeals would reverse that finding. An appeal is not an opportunity to retry the facts of the case. If there is no substantial evidence to support the trial court’s findings, however, it may be possible to overturn those findings on appeal. An appeal may also be justified if the trial court’s findings of facts – even if accepted –do not truly support the ultimate conclusion of the trial court.

The Court of Appeals has a freer hand to determine whether the trial court made an error of law, such as applying the wrong legal standard to a party’s claim, or excluding evidence that should have been considered. Appeals raising errors of law can be more likely to succeed.

Generally, an appeal is limited to the “trial court record.” In other words, the appellate court cannot consider any new evidence, but only the testimony, documents and exhibits presented to the lower court.

Other considerations include the cost of an appeal, the time it may take to obtain a ruling, and the extent that even a favorable ruling would be helpful. For example, in some cases, there may be a high likelihood that the court of appeals would grant a new trial, but a low likelihood that a new trial would yield a significantly better result.

What is the deadline for filing an appeal?

A “notice of appeal” must be filed within 30 days of the date that the judgment was entered. This is a simple document which sets out the rulings being appealed and the name of the court that will hear the appeal. Appeals from Washington superior courts generally go to one of the three divisions of the Washington Court of Appeals. Appeals from the Washington federal district courts go to the United States Court of Appeals for the Ninth Circuit. There is a filing fee of $280 in state court and $450 in federal court.

What are the next steps?

The party filing the appeal (called the “appellant”) must arrange for the necessary portions of the trial court record to be sent to the appeals court. This generally includes selected documents filed with the trial court clerk, exhibits that may have been admitted into evidence at a trial or hearing, and transcripts of any relevant court proceedings. The procedure for transmitting these materials to the appellate court is different in the state and federal court systems.

Next, the appellant files an opening brief, setting out the relevant facts of the case, the claimed errors made by the trial court, and legal argument explaining why the trial court should be reversed. The opposing party then responds to this brief, and the appellant may file an optional reply to that response.

Once the briefs are done, the appeal is submitted to a panel of three judges. They may or may not hold an oral argument before making a ruling.

What can be done if the Court of Appeals rules against me?

In both the state and federal courts, either side can file a motion for reconsideration of the appellate court’s decision. Generally, this is done if the court overlooked some significant fact or legal principle. In federal court, a party can ask an “en banc” panel of 11 judges to reconsider the decision of the original 3-judge panel.

If there is no request for reconsideration, or if it is unsuccessful, a state-court appellant can file a “petition for review,” asking the Washington Supreme Court to hear the case. The petitioner must explain why the issues are sufficiently important to merit review. See RAP 13.4(b).  If the Supreme Court does grant review, there is another round of briefing, followed by oral argument before the nine Justices of the Washington Supreme Court.

In federal court, a party can file a petition for a “writ of certiorari”, asking the United States Supreme Court to hear the case. Such petitions are rarely granted, and should be filed only when certain unusual factors are present. See Supreme Court Rule 10.