Info about the appeal process-laws-etc...

by **Admin** Sat Oct 05, 2013 9:06 pm

Case Number: BC445597
KATHERINE JACKSON ET AL VS AEG LIVE LLC ET AL
Filing Date: 09/15/2010
Case Type: Other Contract (General Jurisdiction)
Status: Verdict 10/02/2013

Future Hearings

10/18/2013 at 08:45 am in department 28 at 111 North Hill Street, Los Angeles, CA 90012
Non-Appearance (Case Review)(RE: FILING PROPOSED JUDGMENT)
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Info about the appeal process-laws-etc...

Federal Rule of Civil Procedure 50 allows a court to disregard the jury's verdict and either order a new trial or direct the entry of a judgment contrary to the verdict of the jury if the other party is entitled to such a verdict as a matter of law.

This rule gives a court the power to set aside a jury verdict either immediately after it is returned or upon request within 28 days after the verdict is returned. This happens sometimes if a jury returns a verdict that is clearly against the weight of the evidence and should never have been returned. This might happen if a jury is prejudiced against one party or another or makes a mistake in its fact finding conclusions and brings back a verdict that is not supported by the evidence. The court has the authority to disregard the verdict and direct the entry of judgment for the other party notwithstanding the verdict.

Note that judgments are not entered until after the jury hands down its verdict. Thus, when the rule refers to a judgment, it does include judgments that are based on jury verdicts. In this sense the court is setting aside the jury's verdict. The "court" referred to is the trial court, not the Appellate Court, because these rules are not in the separate section for Rules of Appellate Procedure.

Federal Rule of Civil Procedure 50 allows a court to disregard the jury's verdict and either order a new trial or direct the entry of a judgment contrary to the verdict of the jury if the other party is entitled to such a verdict as a matter of law.

This rule gives a court the power to set aside a jury verdict either immediately after it is returned or upon request within 28 days after the verdict is returned. This happens sometimes if a jury returns a verdict that is clearly against the weight of the evidence and should never have been returned. This might happen if a jury is prejudiced against one party or another or makes a mistake in its fact finding conclusions and brings back a verdict that is not supported by the evidence. The court has the authority to disregard the verdict and direct the entry of judgment for the other party notwithstanding the verdict.

Federal Rule of Civil Procedure 59 allows the court to set aside the verdict and judgment and either order a new trial or alter or amend part of the verdict/judgment. The court has this authority if it believes such action is warranted even if none of the parties asks it to do so.

This rule permits alteration or amendment of a judgment as opposed to the grant of an entirely new trial. One example of an alteration or amendment of a verdict/judgment is that a court may reduce or increase the amount of damages a jury awards. This is called remititur and additur, repectively. If a jury awards damages in so excessive an amount that it is clear the the jury was prejudiced or mistaken, the court may lower the amount after the jury verdict is in.

Federal Rule of Civil Procedure 60 also permits the court to relieve a party from the effects of a verdict/judgment under these circumstances:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

For these reasons and only under the appropriate circumstances, a court does have the authority to throw out, alter,amend or grant some type of relief from a jury verdict and subsequent judgment.
How To Evaluate An Appeal
You have convinced the trial court to dismiss the case against you. Or you have endured the agony of a jury trial, and the jury awarded damages against your company. Is this the end of your case?
Not necessarily. In almost all civil cases, the losing party has the right to appeal. If you won the case at trial, your instinct may be to soldier on and resist further settlement overtures. If you lost, your instinct may be to seek exoneration at any cost. However, deciding on a proper course of action requires that a party understand the appellate process and how it differs from a trial.
How Is an Appeal Different?
A court of appeals answers the question: did the trial court make a legal error in deciding the case? Therefore, the court of appeals will not hear testimony from live witnesses or consider new evidence. The court reviews only the written record generated in the trial court -- the documentary evidence admitted, the transcript of the testimony, and the affidavits and discovery materials filed with the court.
The differences between trial practice and the appellate process alter the types of skills needed for success. Handling an appeal does not call for the aggressive quick-thinking of the trial lawyer or the diligent legwork of an attorney preparing the trial. An appeals court considers written arguments that analyze the law and the written record. A party may be limited to only 30 to 50 pages in presenting its written argument. The court, in its discretion, may allow the attorneys to present oral argument, but it typically is limited to as little as 15 minutes per side.
The typical appellate court decides thousands of appeals in a year. In fiscal 2001, the U.S. Court of Appeals for the Eleventh Circuit, based in Atlanta, with 12 regular judges and several senior judges, disposed of over 4,000 appeals on the merits. Therefore, in an appeal, the emphasis shifts to effective writing skills. A party may have only 30 pages to grab the court's attention and explain why the outcome of a weeklong jury trial should be set aside.
A recently published survey of appellate court judges in California emphasized the unique skills that are required for effective appellate advocacy. The authors surveyed the preferences of the judges in one California appellate court on every subject from writing styles and proofreading to the use of the record. The appellate judges noted a wide variety of shortcomings in the drafting of written briefs, leading the authors of the article to conclude that in civil cases "[s]ubstantial numbers of appellate briefs apparently interfere with their own messages and fail to serve the interests of the advocates' clients." The same judges looked with more approval on the written briefs in criminal cases, which the authors attributed to the fact that criminal appeals were often handled by more experienced appellate practitioners.1
What Standard Does the Court of Appeals Apply?
In evaluating an appeal, an important consideration is what is known as the "standard of review." In reviewing the actions of a trial court, a court of appeals will show greater deference to the trial court on some issues. Therefore, the type of issue raised and the standard of review affect the likelihood an appeal will succeed. Evaluating an appeal requires that a party understand how high a hurdle the party must jump over to succeed.
Rulings on questions of law are reviewed "de novo," Latin for "over again." The court of appeals gives no deference to the action of the trial court. Review under that standard is more likely to result in a reversal. The issues reviewed "de novo" are generally pure legal issues: "what is the law that applies in this case?" as opposed to "what are the facts in this case?"
A court of appeals reviews some actions, such as the admission or exclusion of evidence or the denial of a request for more discovery, under an "abuse of discretion" standard. The court of appeals does not ask "was the trial court's decision correct?" The court asks whether the trial court's decision "falls within a broad range of permissible conclusions."2 An appellate court will let stand a ruling it finds "reasonable" even if it might not have made the same ruling in the first instance. Review under that standard is less likely to result in reversal.
An important limit on the power of appellate courts is their inability to judge the credibility of witnesses. A party cannot successfully appeal by arguing that "the plaintiff lied" or that the four defense witnesses were more persuasive than the single plaintiff's witness. The court of appeals ordinarily will not rule that a witness could not be believed or compare the relative strength of the evidence presented by the two sides at trial. The court will affirm a verdict if there is "any evidence" to support it. Therefore, the party seeking to overturn a verdict must show that the record contains no evidence to support the verdict. This can be a high hurdle.
Knowing the standards of review can guide a client in deciding both whether to appeal and how to appeal. Although a party might feel strongly about a particular claimed error, a high standard of review might make that issue an unattractive issue for appeal. A clear-headed analysis of an appeal may require a party to set aside some issues and focus on fewer issues that offer better chances for success.
What Are the Chances of Success?
As might be expected, high burdens on appellants often mean that the statistical incidence of success in appeals is relatively low.
In fiscal 2001, the U.S. Court of Appeals for the Eleventh Circuit reported a reversal rate in private civil cases of 13.9 percent. The reversal rate in private civil cases in all federal appellate courts was 11.7 percent. These reversal rates are modestly higher if you include partial reversals.
Should these statistics discourage parties that want to appeal (or embolden parties responding to appeals)? No. But they should provide litigants with a reality check. An appeal is a high-risk/high-reward undertaking. Evaluating an appeal requires an objective assessment of the case and a fresh approach. A party may need to suppress the urge to appeal every perceived error and focus on the issues that have the highest possibility of success. Why should merely repeating in the court of appeals the same arguments that failed to persuade the trial court produce a different result?
Do I Have Any "Friends" Who Can Help Me?
A factor that often strongly influences the outcome of an appeal is the participation of non-parties known as "amici curiae," or "friends of the court." They are persons or groups without a direct stake in the outcome of the case, but they may have an interest in the legal issue presented in the appeal. Such "friends of the court" can be government agencies, trade associations, public interest groups, or other businesses or organizations that may face cases raising similar issues. Marshalling support from these friends of the court can often have a favorable impact on the outcome of the case. In one case, our firm represented a magazine publisher sued for libel. An issue arose in the case of whether the publisher was required to reveal the names of persons with whom the author had spoken in writing the article. In support of our client's position, we enlisted the help of two newspapers, who filed briefs in the case.3 In another case involving the impact of a provision of the bankruptcy code on a claim against shareholders to recover the merger consideration those shareholders had received, the Securities and Exchange Commission filed a brief in support of our clients' position.4 Obtaining the right support for your position can help convince the court that your appeal raises important issues.
What Are the Costs of an Appeal?
Aside from the attorney's fees involved in an appeal, analyzing the risks and rewards of an appeal requires consideration of other costs.
The first consideration is the time needed to complete an appeal. In fiscal 2001, in the U.S. Court of Appeals for the Eleventh Circuit, the time period between filing of a notice of appeal and a decision on the merits was 9.5 months. Judgments in federal court earn interest at a rate tied to the one-year Treasury bill rate at the time of judgment. Judgments in Georgia state courts accrue interest at the rate of 12 percent per year. Therefore, the price of losing an appeal can be an increase in the damages that need to be paid.
Appealing a money judgment may also require posting a bond. In federal court, the filing of an appeal does not automatically prevent the winning party from taking actions to enforce a money judgment such as placing liens on real estate and garnishing bank accounts. The only means of stopping such activity while the appeal is pending is posting a bond. Bonds ordinarily require payment of a premium of five or ten percent of the face amount of the bond. Therefore, the cost of appealing a $500,000 judgment can include a bond premium payment that may never be recovered by a party.
What Will Improve My Chances on Appeal?
If you suffer an adverse judgment and are contemplating how to proceed, a few steps might improve your chances on appeal or, at least, provide you with a more realistic assessment of your chances on appeal.
• Have someone take a fresh look at the case. By the time a party gets to the appellate stage, it may have invested years of effort in the case. The party may also have become emotionally invested in advocating its position. A fresh pair of eyes can provide the clear-headed analysis that can distinguish the potentially winning issues on appeal.
• Be realistic in your analysis. After considering the standards of review and the range of potential issues to appeal, focus on the one or two issues that present the highest probability of success. Limiting the issues on appeal increases the chances that an overburdened appellate court will pay attention to your case.
• Consider using an experienced appellate practitioner. Like many other areas of the law, pursuing an appeal requires a unique skill set. The skills that best serve an appellate practitioner may not be the same skills that make the best trial lawyer. An experienced appellate practitioner may be best able to craft a written and oral argument that provides the best chance on appeal.
Knowledge is power. Understanding the appeal process and its risks and costs can help you make better decisions in an appeal.
ENDNOTES
________________________________________
1. Charles A. Bird and Webster Burke Kinnaird, Objective Analysis of Advocacy Preferences and Prevalent Methodologies in One California Appellate Court, 4 The Journal of Appellate Practice and Process, 141, 156 (2002). ↩
2. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 400 (1990). ↩
3. State of Missouri ex rel. Classic III, Inc. v. Ely, 954 S.W.2d 650 (W.D. Mo. 1997). ↩
4. In the Matter of Munford, Inc., 98 F.3d 604 (11th Cir. 1996). ↩
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CODE OF CIVIL PROCEDURE
SECTION 656-663.2

656. A new trial is a re-examination of an issue of fact in the
same court after a trial and decision by a jury, court, or referee.

657. The verdict may be vacated and any other decision may be
modified or vacated, in whole or in part, and a new or further trial
granted on all or part of the issues, on the application of the party
aggrieved, for any of the following causes, materially affecting the
substantial rights of such party:
1. Irregularity in the proceedings of the court, jury or adverse
party, or any order of the court or abuse of discretion by which
either party was prevented from having a fair trial.
2. Misconduct of the jury; and whenever any one or more of the
jurors have been induced to assent to any general or special verdict,
or to a finding on any question submitted to them by the court, by a
resort to the determination of chance, such misconduct may be proved
by the affidavit of any one of the jurors.
3. Accident or surprise, which ordinary prudence could not have
guarded against.
4. Newly discovered evidence, material for the party making the
application, which he could not, with reasonable diligence, have
discovered and produced at the trial.
5. Excessive or inadequate damages.
6. Insufficiency of the evidence to justify the verdict or other
decision, or the verdict or other decision is against law.
7. Error in law, occurring at the trial and excepted to by the
party making the application.
When a new trial is granted, on all or part of the issues, the
court shall specify the ground or grounds upon which it is granted
and the court's reason or reasons for granting the new trial upon
each ground stated.
A new trial shall not be granted upon the ground of insufficiency
of the evidence to justify the verdict or other decision, nor upon
the ground of excessive or inadequate damages, unless after weighing
the evidence the court is convinced from the entire record, including
reasonable inferences therefrom, that the court or jury clearly
should have reached a different verdict or decision.
The order passing upon and determining the motion must be made and
entered as provided in Section 660 and if the motion is granted must
state the ground or grounds relied upon by the court, and may
contain the specification of reasons. If an order granting such
motion does not contain such specification of reasons, the court
must, within 10 days after filing such order, prepare, sign and file
such specification of reasons in writing with the clerk. The court
shall not direct the attorney for a party to prepare either or both
said order and said specification of reasons.
On appeal from an order granting a new trial the order shall be
affirmed if it should have been granted upon any ground stated in the
motion, whether or not specified in the order or specification of
reasons, except that (a) the order shall not be affirmed upon the
ground of the insufficiency of the evidence to justify the verdict or
other decision, or upon the ground of excessive or inadequate
damages, unless such ground is stated in the order granting the
motion and (b) on appeal from an order granting a new trial upon the
ground of the insufficiency of the evidence to justify the verdict or
other decision, or upon the ground of excessive or inadequate
damages, it shall be conclusively presumed that said order as to such
ground was made only for the reasons specified in said order or said
specification of reasons, and such order shall be reversed as to
such ground only if there is no substantial basis in the record for
any of such reasons.

657.1. A new trial may also be granted as provided in Section 914
of this code.

658. When the application is made for a cause mentioned in the
first, second, third and fourth subdivisions of Section 657, it must
be made upon affidavits; otherwise it must be made on the minutes of
the court.

659. (a) The party intending to move for a new trial shall file
with the clerk and serve upon each adverse party a notice of his or
her intention to move for a new trial, designating the grounds upon
which the motion will be made and whether the same will be made upon
affidavits or the minutes of the court, or both, either:
(1) After the decision is rendered and before the entry of
judgment.
(2) Within 15 days of the date of mailing notice of entry of
judgment by the clerk of the court pursuant to Section 664.5, or
service upon him or her by any party of written notice of entry of
judgment, or within 180 days after the entry of judgment, whichever
is earliest; provided, that upon the filing of the first notice of
intention to move for a new trial by a party, each other party shall
have 15 days after the service of that notice upon him or her to file
and serve a notice of intention to move for a new trial.
(b) That notice of intention to move for a new trial shall be
deemed to be a motion for a new trial on all the grounds stated in
the notice. The times specified in paragraphs (1) and (2) of
subdivision (a) shall not be extended by order or stipulation or by
those provisions of Section 1013 that extend the time for exercising
a right or doing an act where service is by mail.

659a. Within 10 days of filing the notice, the moving party shall
serve upon all other parties and file any affidavits intended to be
used upon such motion. Such other parties shall have ten days after
such service within which to serve upon the moving party and file
counter-affidavits. The time herein specified may, for good cause
shown by affidavit or by written stipulation of the parties, be
extended by any judge for an additional period of not exceeding 20
days.

660. On the hearing of such motion, reference may be had in all
cases to the pleadings and orders of the court on file, and when the
motion is made on the minutes, reference may also be had to any
depositions and documentary evidence offered at the trial and to the
report of the proceedings on the trial taken by the phonographic
reporter, or to any certified transcript of such report or if there
be no such report or certified transcript, to such proceedings
occurring at the trial as are within the recollection of the judge;
when the proceedings at the trial have been phonographically
reported, but the reporter's notes have not been transcribed, the
reporter must upon request of the court or either party, attend the
hearing of the motion and shall read his notes, or such parts thereof
as the court, or either party, may require.
The hearing and disposition of the motion for a new trial shall
have precedence over all other matters except criminal cases, probate
matters and cases actually on trial, and it shall be the duty of the
court to determine the same at the earliest possible moment.
Except as otherwise provided in Section 12a of this code, the
power of the court to rule on a motion for a new trial shall expire
60 days from and after the mailing of notice of entry of judgment by
the clerk of the court pursuant to Section 664.5 or 60 days from and
after service on the moving party by any party of written notice of
the entry of the judgment, whichever is earlier, or if such notice
has not theretofore been given, then 60 days after filing of the
first notice of intention to move for a new trial. If such motion is
not determined within said period of 60 days, or within said period
as thus extended, the effect shall be a denial of the motion without
further order of the court. A motion for a new trial is not
determined within the meaning of this section until an order ruling
on the motion (1) is entered in the permanent minutes of the court or
(2) is signed by the judge and filed with the clerk. The entry of a
new trial order in the permanent minutes of the court shall
constitute a determination of the motion even though such minute
order as entered expressly directs that a written order be prepared,
signed and filed. The minute entry shall in all cases show the date
on which the order actually is entered in the permanent minutes, but
failure to comply with this direction shall not impair the validity
or effectiveness of the order.

661. The motion for a new trial shall be heard and determined by
the judge who presided at the trial; provided, however, that in case
of the inability of such judge or if at the time noticed for hearing
thereon he is absent from the county where the trial was had, the
same shall be heard and determined by any other judge of the same
court. Upon the expiration of the time to file counter affidavits the
clerk forthwith shall call the motion to the attention of the judge
who presided at the trial, or the judge acting in his place, as the
case may be, and such judge thereupon shall designate the time for
oral argument, if any, to be had on said motion. Five (5) days'
notice by mail shall be given of such oral argument, if any, by the
clerk to the respective parties. Such motion, if heard by a judge
other than the trial judge shall be argued orally or shall be
submitted without oral argument, as the judge may direct, not later
than ten (10) days before the expiration of the time within which the
court has power to pass on the same.

662. In ruling on such motion, in a cause tried without a jury, the
court may, on such terms as may be just, change or add to the
statement of decision, modify the judgment, in whole or in part,
vacate the judgment, in whole or in part, and grant a new trial on
all or part of the issues, or, in lieu of granting a new trial, may
vacate and set aside the statement of decision and judgment and
reopen the case for further proceedings and the introduction of
additional evidence with the same effect as if the case had been
reopened after the submission thereof and before a decision had been
filed or judgment rendered. Any judgment thereafter entered shall be
subject to the provisions of sections 657 and 659.

662.5. (a) In any civil action where after trial by jury an order
granting a new trial limited to the issue of damages would be proper,
the trial court may in its discretion:
(1) If the ground for granting a new trial is inadequate damages,
issue a conditional order granting the new trial unless the party
against whom the verdict has been rendered consents to the addition
of damages in an amount the court in its independent judgment
determines from the evidence to be fair and reasonable.
(2) If the ground for granting a new trial is excessive damages,
issue a conditional order granting the new trial unless the party in
whose favor the verdict has been rendered consents to the reduction
of so much thereof as the court in its independent judgment
determines from the evidence to be fair and reasonable.
(b) If a deadline for acceptance or rejection of the addition or
reduction of damages is not set forth in the conditional order, the
deadline is 30 days from the date the conditional order is served by
the clerk of the court. Failure to respond to the order in accordance
with this section shall be deemed a rejection of the addition or
reduction of damages and a new trial limited to the issue of damages
shall be granted automatically.
(c) A party filing and serving an acceptance of a conditionally
ordered addition or reduction of damages shall concurrently serve and
submit to the court a proposed amended judgment reflecting the
modified judgment amount, as well as any other uncontested judgment
awards.

663. A judgment or decree, when based upon a decision by the court,
or the special verdict of a jury, may, upon motion of the party
aggrieved, be set aside and vacated by the same court, and another
and different judgment entered, for either of the following causes,
materially affecting the substantial rights of the party and
entitling the party to a different judgment:
1. Incorrect or erroneous legal basis for the decision, not
consistent with or not supported by the facts; and in such case when
the judgment is set aside, the statement of decision shall be amended
and corrected.
2. A judgment or decree not consistent with or not supported by
the special verdict.

663a. (a) A party intending to make a motion to set aside and
vacate a judgment, as described in Section 663, shall file with the
clerk and serve upon the adverse party a notice of his or her
intention, designating the grounds upon which the motion will be
made, and specifying the particulars in which the legal basis for the
decision is not consistent with or supported by the facts, or in
which the judgment or decree is not consistent with the special
verdict, either:
(1) After the decision is rendered and before the entry of
judgment.
(2) Within 15 days of the date of mailing of notice of entry of
judgment by the clerk of the court pursuant to Section 664.5, or
service upon him or her by any party of written notice of entry of
judgment, or within 180 days after the entry of judgment, whichever
is earliest.
(b) Except as otherwise provided in Section 12a, the power of the
court to rule on a motion to set aside and vacate a judgment shall
expire 60 days from the mailing of notice of entry of judgment by the
clerk of the court pursuant to Section 664.5, or 60 days after
service upon the moving party by any party of written notice of entry
of the judgment, whichever is earlier, or if that notice has not
been given, then 60 days after filing of the first notice of
intention to move to set aside and vacate the judgment. If that
motion is not determined within the 60-day period, or within that
period, as extended, the effect shall be a denial of the motion
without further order of the court. A motion to set aside and vacate
a judgment is not determined within the meaning of this section until
an order ruling on the motion is (1) entered in the permanent
minutes of the court, or (2) signed by the judge and filed with the
clerk. The entry of an order to set aside and vacate the judgment in
the permanent minutes of the court shall constitute a determination
of the motion, even though that minute order, as entered, expressly
directs that a written order be prepared, signed, and filed. The
minute entry shall, in all cases, show the date on which the order
actually is entered in the permanent minutes, but failure to comply
with this direction shall not impair the validity or effectiveness of
the order.
(c) The provisions of Section 1013 extending the time for
exercising a right or doing an act where service is by mail shall not
apply to extend the times specified in paragraphs (1) and (2) of
subdivision (a).
(d) An order of the court granting a motion may be reviewed on
appeal in the same manner as a special order made after final
judgment.

663.1. The court may grant a new trial of any action or proceeding
when all of the following conditions exist:
(a) Any proposed bill of exceptions or statement of the case on
motion for a new trial is lost or destroyed by reason of
conflagration or other public calamity.
(b) No other record of the proceedings upon the trial thereof can
be obtained.
(c) Such action or proceeding is subject to review by motion for
new trial pending at the time of such loss or destruction.
(d) The court in which such action or proceeding is pending deems
it impossible or impracticable to restore such proceedings and to
settle a bill of exceptions or statement of the case containing such
proceedings, so as to enable the court to review the judgment or
order therein by motion for new trial.
(e) At the time of such loss or destruction a motion for new trial
was pending.
In order to grant such new trial, it shall be unnecessary to have
any bill of exceptions or statement of the case settled, but upon the
facts recited in this section being shown to the satisfaction of the
court by affidavit or otherwise, the court may grant such new trial.

663.2. Pending the hearing of a motion pursuant to Section 663.1 to
grant a new trial, the time within which a bill of exceptions may be
prepared, served, or presented for settlement shall be extended and
shall not commence to run until the decision upon the motion. The
motion must be made within 30 days after the loss or destruction of
the records.
________________________________________
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Note: Most states follow the Federal civil procedure laws:

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by Capricious Anomaly Sat Oct 05, 2013 9:15 pm

Great resource to learn about this appeal process. Thanks so much!

Info about the appeal process-laws-etc...

Info about the appeal process-laws-etc...

Re: Info about the appeal process-laws-etc...