JOHN DERRICK ANSWERS FREQUENTLY ASKED QUESTIONS

I work on flat rates when consulting. All such rates are subject to limits as to what is a reasonable amount of time, but they are also intended to reflect value delivered — not just time spent — and to encourage free-flowing exchanges. I can be flexible in the scope and terms of consultations, to meet the needs of parties and the lawyers handling an appeal. 

Rates start at $1,500 for limited-scope consultations allowing for up to around three hours, give or take. Sometimes that is all that’s needed. Rates for ongoing consultations tend to be between $2,500 and $10,000 depending on the level of involvement. And full assessments of trial court records can cost more than that.

My hourly rate for appellate mediation is $500, split between the parties, with preparation time bundled in at no extra charge.

I am based in Santa Barbara, but I have handled appeals in all six appellate districts in California — as well as the Ninth Circuit — and I consult and mediate statewide.

No. I no longer handle new cases in a lead role or as an attorney of record in any capacity. My focus these days is consulting — drawing on my extensive experience as an appellate lawyer — and mediation.

I was first certified as an appellate specialist in 2008 and was most recently re-certified in 2023. In order to be identified as a “certified” appellate specialist in California, an attorney must be certified by The State Bar of California Board of Legal Specialization. To achieve this certification, lawyers must demonstrate a high level of experience in this field, pass a rigorous all-day written examination, fulfill ongoing education requirements, and be favorably evaluated by other attorneys or judges familiar with their work. Certification lasts for five years. Renewals require fresh peer review and demonstrating recent experience. 

In many cases. that can make sense. I can advise on that as part of a limited-scope consultation to help parties decide how to approach an appeal. I can also advise on selecting an appellate specialist and on fee arrangements. But in other cases, for one reason or another, trial counsel — or another lawyer who is not an appellate specialist — is going to handle the case on appeal. And that is where an ongoing consultation throughout the whole process can be invaluable.

In the past few years, the reversal rate in civil cases at the California Court of Appeal has been around 18 percent. Reversal rates in the Ninth Circuit — the federal appellate court covering California — are generally lower, although statistics are not published. The lower reversal rates in federal court partly reflect the large number of immigration and prisoner rights cases there, which, although technically “civil,” are really in categories of their own.

​If you are starting an appeal and find the reversal statistics unpromising, that doesn’t mean  you should give up. The chances of any specific appeal succeeding depend on the merits of that case. There are no quotas the courts apply. When considering reversal rates, keep in mind the overall statistics include many appeals that were hopeless and never had any realistic chance of success. 

If you are defending an appeal, the statistics should not lull you into complacency. You do not want your case to be one of the approximately one-in-five that, in state court, are reversed.

The statewide median duration from the filing of a notice of appeal to the issuance of a written opinion has lately been about 14 months in civil cases. The process can be longer if the losing party petitions the California Supreme Court for review — but only by a few months unless review is granted.

Yes, if you are talking about writs filed with the California Court of Appeal. A “writ” is an order from a higher court ordering a lower court to do something. Writs provide a process for review by the appellate courts of intermediate trial court rulings that are not immediately appealable. A litigant who seeks a writ does so by means of a petition. There are some types of issue that by statute can only be reviewed by way of a writ petition.

The logistics of putting together a writ petition can be quite complex, both because of the rules that apply and the tight timeframe within which everything has to be pulled together. While writ petitions have something in common with appellate briefs, they are not the same in terms of their content or format — rather, they are a hybrid that blends the style and content of a pleading in a trial court with that of a brief on appeal.

Yes. If seeking or opposing Supreme Court review, it is a mistake to simply recycle the briefing at the lower appellate court. Rather, petitions for review and answers should be tailored to the criteria for granting review. A flawed decision is not necessarily a compelling basis for review.

No. There are a number of practical and ethical reasons that make that impractical.

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