Finality & Remittitur: What Goes Up Must Come Down (2024)

Sir Isaac Newton and Sammy Davis Jr. (courtesy of Blood, Sweat and Tears) understood a universal law: What goes up, must come down. This applies as much to appellate litigation as gravity. Cases start and end in the trial court. The notice of appeal is the jurisdictional document (filed by a litigant) taking a case "up," and the remittitur (issued by the appellate court) is the jurisdictional document sending the case back "down." Understanding this jurisdictional path is essential to properly managing an appeal to the very end.

Finality: Is This The End? The filing of the court of appeal's opinion may feel like the end of the story, but it is actually just a milestone-though a very important one-along the jurisdictional parabola of an appeal's lifecycle. That opinion is not yet jurisdictionally "final" for another 30 days. (Cal. R. Ct. 8.264(b)(1).) "Finality" can mean a number of things; the focus here is not finality for purposes of appealability or preclusion but rather finality for purposes of altering the opinion.

This 30-day finality window-which also applies to orders involuntarily dismissing appeals-exists to provide a little breathing room for the decision and an opportunity to address next-morning regrets. Thus, if the justices wake up the next day (or any day within the 30) thinking "oh no, we've made a terrible mistake," they still have a chance to change the decision. Such second thoughts are very rare, and typically are prompted by a rehearing petition, which the court must decide within the 30 days. After the 30 days, the court of appeal loses its power over the decision and cannot modify it, grant rehearing or order publication. (Rules 8.264(c)(1), 8.268(a)(2), 8.1120(b)(1).) Remember though that many court of appeal rulings are not "decisions" and thus are final immediately, e.g., orders summarily denying writ petitions, including supersedeas petitions. (Rules 8.490(b)(1), 8.264(b)(2)(A).)

If, within the 30-day window, the court of appeal modifies a decision substantively-if it changes the disposition or costs award-or orders publication, then a new 30-day finality period begins. (Rules 8.264(c)(2), 8.264(b)(3).)

If the 30th day falls on a weekend or holiday, then the court of appeal retains power over its decision until the close of the next business day. (Rule 8.264(c)(1).) But this "next day" safe harbor applies only to the court of appeal; it does not apply to the actual date of finality, which remains the 30th day, holiday or not. This point is extremely important because the finality date affects calendaring for all other purposes: for practitioners to file a petition for review or a request to the Supreme Court for depublication; and for the Supreme Court to grant review sua sponte. (Rules 8.500(e)(1), 8.512(c)(1), 8.1125(a)(4).) Hence the rule of thumb that a petition for review is due 40 days from the filing of a decision-even though no rule uses the phrase "40 days," that figure derives from combining finality's 30 days with the 10 days to file a petition for review. The 40th day remains immutable even if the finality date falls on a holiday. (However, if the 40th day is itself a holiday, then the filing deadline is the next court day.)

After the 30-day period runs, the decision is final as to the court of appeal, but true "finality" still hasn't occurred: The Supreme Court can grant review or order depublication. Only after the time for Supreme Court action expires does the decision become truly final in the sense that it cannot be changed by any court. So 30-day finality does not mark the true termination of an appeal; for that, meet Mr. Remittitur.

Remittitur: The Way Back Down. Like the term "finality," "remittitur" has multiple meanings. In appellate argot, a remittitur is the jurisdictional document that formally ends the life of an appeal by notifying the world-especially the parties and trial court-that the decision is final. Issuance of this one-page document ends appellate authority and revests jurisdiction in the trial court. It is called a remittitur because the Code of Civil Procedure requires the court of appeal to "remit" its judgment-its decision affirming, reversing, or modifying the trial court judgment that was appealed-back to the court where the appeal originated. (Code Civ. Proc. §§ 43, 912.) (The federal analogue is the "mandate.")

Why does the remittitur matter if the appellate judgment has already issued and become final? Because it creates (and can define) the trial court's continuing jurisdiction. Jurisdiction for what? For anything else that might need to happen in the case. Most importantly, the remittitur contains the award of costs on appeal, and the appellate court's issuance of the remittitur triggers the 40-day time period to file a memorandum of costs on appeal and any attorneys' fees motion. In cases where the fee-tail wags the litigation-dog, issuance of the remittitur may be one of the most key documents in the entire action.

Because a trial court lacks jurisdiction to act on the appellate court's decision before the remittitur issues, in some instances it may be useful to ask that the remittitur's issuance be stayed (typically to allow time to file a petition for certiorari to the United States Supreme Court). And in other highly unusual situations, it may be necessary to petition the court to recall a remittitur to correct a clerical error or revive a dead appeal to prevent a grave miscarriage of justice. A graphic example is In re Grunau (2008) 169 Cal.App.4th 997 (appeal dismissed decades earlier is reinstated to remedy lawyer misconduct).

The end stages of the appellate process involve what one might call the 3 R's and the 3 C's: rehearing, review and remittitur; certiorari, costs and closing. Proper file closing-including formal disengagement and disposition of file materials-truly is the end.

And this is the end of our Appellate Tips II series (begun in 2009) that has tracked the life of an appeal from initial decision through remittitur. Stay tuned for the roll-out of series III, which will address further topics from the appellate sphere.

Finality & Remittitur: What Goes Up Must Come Down (2024)


What does it mean when a remittitur is issued? ›

A remittitur is a document that terminates the Court of Appeal's jurisdiction over a case. A remittitur also says if any party is eligible to get reimbursed for some or all of their costs in the appeal. What happens after the remittitur? The case transfers back to the trial court.

What is the meaning of the word remittitur? ›

A “remittitur” is the “process by which a court requires either that the case be retried, or that the damages awarded by the jury be reduced.” Black's Law Dictionary (11th ed. 2019) It is a procedural device defense lawyers use when they lose at trial.

What is the order of the remittitur? ›

A trial court order in response to an excessive damage award or verdict by a jury which gives the plaintiff the option to accept a reduced damage award or conviction, or the court may order a new trial.

What are the four steps in the appeals process? ›

  • Step 1: File the Notice of Appeal. ...
  • Step 2: Pay the filing fee. ...
  • Step 3: Determine if/when additional information must be provided to the appeals court as part of opening your case. ...
  • Step 4: Order the trial transcripts. ...
  • Step 5: Confirm that the record has been transferred to the appellate court.
Sep 21, 2021

What do appellate judges look for when they review a case? ›

The appellate court reviews the record to make sure there is substantial evidence that reasonably supports the trial court's decision. The appellate court's function is not to decide whether it would have reached the same factual conclusions as the judge or jury.

Who issues remittitur? ›

A Court of Appeal must issue a remittitur after a decision in an appeal.

Is remittitur required? ›

Remittitur: The Way Back Down.

It is called a remittitur because the Code of Civil Procedure requires the court of appeal to "remit" its judgment-its decision affirming, reversing, or modifying the trial court judgment that was appealed-back to the court where the appeal originated. (Code Civ. Proc. §§ 43, 912.)

What is a remitter legal? ›

A person who purchases an instrument from its issuer if the instrument is payable to an identified person other than the purchaser.

What does remit a crime mean? ›

the act of referring a law case to another court

If you've been in prison for five years of a seven-year sentence but you've been on good behavior, a judge might remit the remainder of your sentence and let you go free.

Is remittitur procedural or substantive? ›

In this screenshot I attached, motion for remittitur is considered a substantive issue.

Is there remittitur in federal court? ›

Ideally, a judge only grants a motion of remittitur when they believe the amount of a jury award to be so excessive as to be a gross miscarriage of justice. Unlike additur, which is allowed only in state courts where the 7th amendment doesn't apply, a motion for remittitur is allowed in federal court cases.

What does record remitted mean? ›

a transfer of the record of an action from one tribunal to another, particularly from an appellate court to the court of original jurisdiction.

What are the chances of winning an appeal? ›

Statistically speaking, any appellant faces an uphill battle with less than a 50% chance of success. But, with those odds, why should a client ever appeal? Todd Smith and Jody Sanders answer this question, highlighting why appeals matter even when the odds might not point to success.

Can new evidence be introduced in a retrial? ›

Eads, the Seventh Circuit explained that for federal criminal cases, for a criminal defendant to receive a retrial because of newly discovered evidence, the defendant must provide evidence that “(1) came to his knowledge only after trial; (2) could not have been discovered sooner through the exercise of due diligence; ...

How to win an appeal? ›

6 Steps to Win Your Criminal Appeal
  1. Step #1: Choose an Appellate Attorney. ...
  2. Step #2: File a Notice of Appeal. ...
  3. Step #3: Review the Record on Appeal. ...
  4. Step #4: Prepare & File Your Brief. ...
  5. Step #5: Oral Argument. ...
  6. Step #6: The Decision. ...
  7. You Need an Experienced Criminal Appeals Attorney By Your Side.

What is a remittitur in black law dictionary? ›

REMITTITUR Definition & Legal Meaning

A court process to reduce the verdict handed down by a jury.


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