How to Appeal a Summary Judgment

Co-authored by Clinton M. Sandvick, JD, PhD

Last Updated: February 10, 2023 References Approved

Summary judgment is the process by which litigants can end cases before going to trial. If you can show that the important facts in the case are undisputed and that those facts are in your favor, the judge can decide the case on the basis of a Motion for Summary Judgment. If summary judgment is granted on all causes of action, then the case is over. If the judge denies the party’s motion, the case continues on to trial. Should you lose the summary judgment motion, you may be able to appeal. An appeal is a request to a higher court to review and overturn the decision of a lower court.

Sample Notice of Appeal

Part 1

Part 1 of 6:

Deciding Whether to Appeal

1
Understand the requirements for an appeal. You may only appeal a final order. A final order ends the litigation and leaves nothing else to do in the trial court.^{[1]
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2
Read the judge’s ruling. If the judge grants your opponent’s motion, you have lost the case and may be liable to him or her for damages. Because the case has “ended” and will not proceed to trial, you may immediately appeal the court’s decision. In order to appeal successfully, you need to identify why the judge ruled as she did.
- A “motion for summary judgment” typically argues that even if all of the facts of the case (as stated in the complaint) were true, the plaintiff will still be unable to recover damages. Therefore, if the court grants a “motion for summary judgement” for a defendant, the court is essentially saying the plaintiff’s facts will not allow recovery.
- Alternatively, the court could grant summary judgment for the plaintiff. In this situation, the court is saying that the defendant cannot show that there is a triable issue.
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3
Find if an exception exists. A few states have a procedure where you can “ask” the state supreme court to hear an appeal on a summary judgment motion, if the motion involves a “controlling question of law for which there is a substantial ground for difference of opinion.”
- Another exception exists where the judge partially grants the motion for summary judgment. If the court grants the motion and dismisses the causes of action that have damages (i.e., essentially leaving you with no reason to proceed, even though there are a few causes left), you should try to appeal.
- In this situation, you would ask the trial court to “stay” the litigation while you appeal the dismissed causes of action.
4
Review your evidence. In order to successfully appeal, you will have to show that an issue of material fact exists for the jury to decide. You should review the motions for summary judgment as well as the court’s written order.
- You cannot present new evidence on appeal. However, the trial court may have overlooked evidence that you pointed out in your motion to oppose summary judgment. If you bring this information to the appellate court’s attention, then you could get the summary judgment reversed.
- Read the judge’s written order closely and identify any evidence that the judge did not discuss.
5
Consider the costs of an appeal. Between the filing fees, court fees, fees for getting materials to the appeals court, and fees for consulting an attorney, filing an appeal can be very expensive.
- An appeal also takes up a lot of time. You will be doing lots of legal research, writing a legal brief, and preparing to argue in front of the court.
- An appeal can also cause stress on you and your loved ones, and can extend the litigation for many years in some cases.
- Appellate court costs typically exceed those of the trial court. For example, in California a notice of appeal is $775. It is not unusual for court transcripts to exceed $1,000. Some states have fee waivers in civil cases for individuals with low incomes (most notably California). If you received a fee waiver for your trial court case you should be eligible for one in the appeals courts.

Part 2

Part 2 of 6:

Filing a Notice of Appeal

1
Find the deadline. There are strict time limits for filing appeals. The time limit will depend on the court, but typically the clock starts running as soon as soon as the court enters the final judgment.
- You will receive a “Notice of Entry of Final Judgment.” After the judgment has been entered, you typically have between 10 and 30 days to file a notice of appeal.
- The deadlines vary widely according to the state you practice in, the court you are appealing to, and in some circumstances, the type of case.
- You should begin planning your appeal as soon as the judge issues an oral order granting the summary judgment. Do not wait until you receive the Notice of Entry of Final Judgment.
2
Find a form. A Notice of Appeal is a very brief, simple document that simply informs your opponent and the court that you are going to appeal the judgment. Many courts provide a Notice of Appeal form, which requires you to fill in the blanks or check off boxes. After you receive your Notice of Entry of Final Judgment, you should ask the court clerk if a form exists.
- You should not use forms from a different court. Courts do not want forms from other jurisdictions.
- Later, if you change your mind, you can withdraw the Notice.
3
Draft a Notice of Appeal. If the court doesn’t have a form, then you will have to draft a Notice of Appeal. Search around the internet for samples that have been filed in your court. If you can’t find one, then you can draft one in a few steps.
- Insert a caption. The caption is the information at the top of the pleadings, listing the court, the parties, the judge, and the case number. You can copy this information off any pleading filed in the case.
- Two lines beneath the caption center “NOTICE OF APPEAL” in all caps. Bold it.
- Two lines beneath this, type the body: “I, [insert name], in the above captioned action do appeal to the [insert name of the appellate court] from the judgment entered against me on [insert the date of the Notice of Final Judgment] by the [insert name of trial court] and do hereby move that the judgment be reversed and the case be sent back to the lower court for trial.”
- Insert a signature block and sign. Underneath the signature block, include your name and contact information, just as you have for all pleadings you filed in the court up to this point.
- Attach a certificate of service. Underneath the signature, center “CERTIFICATE OF SERVICE” in caps, all bold. Then type out: “I hereby certify on [insert the date] that I did cause to be served on the parties in this case this Notice of Appeal by [mail or a process server] to the address listed below.” Then list the parties, including their addresses, and sign and date it.
4
File the Notice of Appeal. Take the Notice of Appeal to the courthouse. You will then file the Notice with the court clerk.
- You must pay a fee. If you cannot afford it, you should be able to get a fee waiver for the filing fees. Ask the court clerk for the form.
- Keep multiple copies for yourself. Make sure that all copies are time-stamped by the clerk.
- You may also have to file a copy of the Notice of Appeal in the appellate court as well. As the clerk if this is the procedure in your state.
5
Serve the Notice on the other party. You must notify the other party that you are filing an appeal. You can have the Notice served either using the sheriff, a private process server, or by mail.
- You should serve it in the same manner that you served notice of the pleadings in your case up to this point.
6
File a docketing statement. In the appellate court, you must file what is called a “docketing statement.” Often, the court will have a “fill in the blank” form. Typically, it asks for the caption information, the names of the judges who considered the motion that is on appeal, the nature of the appeal, and a short statement of the appealable issues.^{[3]
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- You must file this quickly. You often only have a week or so to file after filing the Notice of Appeal. Ideally, you should locate and complete this form at the same time as your Notice of Appeal.
- The docketing statement must also be served on the other party.^{[4]
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Part 3

Part 3 of 6:

Preparing the Record for Appeal

1
Look over the briefing schedule. Once you decide to appeal a case and file a Notice of Appeal, you will receive a schedule for the rest of the process. This schedule will include dates for all of the hearings and dates that briefs are due.
- As the “appellant” or “petitioner,” you are the one bringing the appeal and will therefore file the first brief. The other party, the “respondent,” will file the response brief.
- To make sure that you do not miss important deadlines, you may want to place any important dates on your calendar.
2
Read the appellate rules. All courts of appeals have their own procedures and rules, so make sure that you understand the rules of the court that you are appealing to. The rules will explain how your appeal should look, the color of the cover, and how you should cite to legal authority. You will want to know the specific rules for the appellate court.
- Rules can cover everything from page limits, font size and type, the color of paper the brief is printed on, and what parts must be included in the brief.
- Appellate rules are often posted online. Call the clerk of the appellate court and ask if you can have a copy. The clerk should point you in the right direction.
3
Find an appellate practice manual. Many state bar associations publish practice manuals to help litigants prepare appeals.
- Search for one in your state by typing “appeal manual pro se” and your state into a search engine. You may also call your state bar association and ask if they have one.
- Read these manuals cover to cover. Drafted by practicing appellate attorneys, they provide helpful information for how to write briefs and meet the deadlines in your state. They typically include many sample motions you can use as templates.
4
Order transcripts. Because appellate courts do not hear any new evidence, you must prepare a written record for them to use as the basis for their decision. If you are appealing a motion for summary judgment, this record will include all of the documents that were submitted to the court in preparation for the motion.
- Some documents that should be included are the complaint, the answer, any documents that were given to the court to support the complaint or answer, and both parties’ motions for summary judgment.
- Also include any transcript of a hearing that was held on the motion for summary judgment.
- Obtaining this record usually costs money, so make sure that you check for any fees before filing your appeal.
5
Order the record on appeal. The complete record includes not only the transcripts but also the pleadings and motions. It is typically assembled by the clerk of court.
- You must order the record on appeal within a certain amount of time, often within 14 days.
- The court clerk often has a form that you can fill out. If not, put your request in writing and take it to the court clerk. Simply write: “A notice of appeal was filed in [insert case number]. I hereby request that you prepare the record of appeal for filing in the appellate court. There will be transcripts of the proceedings which I have ordered from the court reporter and will file when available. [Insert any information about exhibits that you want included in the record.] Thank you for your assistance. Sincerely, [your name].”
- You will have to pay a preparation fee, which varies by court.
6
File the transcripts. Once you have ordered all of the transcripts, you must file them in court. The court you file in may differ from state to state, but typically you will file them in the trial court.
- The certification process varies. For example, in some courts the transcript will be given to the judge, who then signs the certification. In other courts, the parties all are afforded the opportunity to inspect the record and lodge objections if they think something is inaccurate. If no objections are made, then you can file the transcript. If there is a disagreement, the judge must then look at the transcript and certify it for accuracy.
- You must give notice to the other party when you file. A standard Notice of Filing is very easy. If there isn’t a form Notice, then simply open a blank word processing document. Insert the name of the court at the top and then include the caption. The caption can be pulled from any document filed in the case.
- Then, center the words “NOTICE OF FILING” in all caps, bolded. Two lines underneath, type the names and addresses of the other party including his or her attorneys. Then type, “Please take notice that on [insert date] the undersigned filed the certified transcripts with the clerk of the [insert name of the trial court].” Then insert signature block and sign.
- Append a Certificate of Service at the bottom.
7
Send the record to the appellate court. Once the entire record has been assembled, you must send it to the appellate court, meeting all deadlines.
- You must also file a Notice of Filing to the other party. You can use the Notice of Filing that you filed when you filed the transcripts, but tweak it. Change the name of the court to the appellate court at the top of the Notice and in the body.

Part 4

Part 4 of 6:

Drafting the Appeal

1
Reread your motion in opposition to summary judgment. If you filed a motion opposing summary judgment in the trial court, then you already should have a basic grasp of making legal arguments and performing legal research. In the trial court, you pointed out disputed factual issues and how the law did not command summary judgment for the other party. You will renew these arguments on appeal.
- If you only made an oral motion in trial court, then you will have to learn how to perform legal research and write legal arguments for the appellate brief.
2
Perform legal research. Attorneys spend years learning how to research and craft arguments. If you decide to proceed without a lawyer, you will have to find legal authority as best you can. Every argument made to an appellate court must be based on the law. The court will not consider arguments that appeal only to common sense.
- Try to find a public law library. Often courthouses will have a library for public use. Some law schools may also open up their libraries to the public.
- Find the Reporters for your state. The Reporters are bound volumes of case decisions. They will be stored on a shelf. Either at the beginning or the end of the row of volumes will be an index. The index will tell you which reporters to look into depending on subject matter.
- Read up on cases involving “summary judgment” and whatever the basis of your lawsuit was. If the lawsuit is a breach of contract suit, look up “breach of contract.”
- Do online research. Some states may have cases published online. Visit the website for your state’s Supreme Court. If they are publishing opinions online, there should be a link from that website to the opinions.
3
Photocopy cases. If you find a case that sounds similar to your case, be sure to photocopy it or (if it is online) print it off. You will need to cite cases when you write your brief.
4
Learn citation format as best you can. When you cite a case, you need to cite the case name and then the information of the reporter from which you got the case. You also need to include the page which states the point you are citing the case for.
- For example, a case citation might look like this: Richardson v. Carlyle, 233 S.W.2d 455 (Ky. 1997).
- In the example, the case name comes first, in italics. You can find the case name from reading the opinion; it should be the first thing stated. “233” is the volume of the reporter. “S.W.” is the name of the reporter, with “2d” designating its second edition. “455” is the page number of the legal rule you cited. In the parentheses, you list the court (here, the Kentucky Supreme Court) and the year the case was decided.
- There are many variants, depending on whether you are citing a statute, an intermediate appellate court, or a federal court. To get a better handle on these many variations, simply read the opinions. Appellate courts cite to other cases in their opinions. You should follow as best as you can their citation format.
5
Craft the issue presented. On appeal from a motion for summary judgment, the issue presented will be something like: “Whether the trial court appropriately granted summary judgment when numerous issues of material fact are in dispute.”
6
Draft a statement of facts. The statement of facts is a couple of pages (or less) that lays out the facts surrounding the lawsuit. You must draw facts only from the record that was prepared and filed on appeal. You cannot supplement the record with facts from outside the record.
- Start at the beginning. If the lawsuit is a contract dispute, state the relevant facts about when the parties met, what they bargained for, the timeline for performance, and who did not perform. Include the dates when these events occurred.
- If the lawsuit is a personal injury lawsuit resulting from a traffic accident, you could begin by describing the scene of the accident (if this information is in the record).
- Do not argue in the statement of facts. Avoid language like “negligent,” “unreasonable,” or other legal conclusions like “breach” or “violated the law.”
- Always cite each fact to the record. These citations help the judges find what you are referring to. Put the citation in parentheses right after the fact: “The seat belt failed and broke at the clasp. (R. 27.)” Here “R” refers to record.
7
Explain the standard of review. On an appeal for summary judgment, the standard of review is “de novo.” This means the appellate court has to extend no deference to the trial court’s decision.
- Write: “On an appeal of the granting of summary judgment, this court reviews the trial court’s ruling de novo.” Then cite a case from your state for this proposition.
8
Draft your argument. Summary judgment is granted because the trial court believed that there were no issues of material fact in dispute and that the law, when applied to the facts, warranted judgment to the party who moved for summary judgment (typically the defendant). Therefore, your job on appeal is to argue either that (1) there are factual issues that are disputed that call for a trial and/or (2) that the law does not clearly mandate a decision for the party who moved for summary judgment.
- When you read the trial court’s order, you should have identified factual evidence the judge did not consider. Now emphasize in your appeal that the court didn’t even consider this evidence. Be sure to cite to either the order or to the statements made by the judge in the transcripts to support your point.
- If you filed a motion in opposition to summary judgment in the trial court, you can use the arguments there as a guide. They will be the same arguments—why you believe summary judgment is not appropriate.
9
Write a short conclusion. The conclusion can be cursory. It can merely state, “For the foregoing reasons, the appellants asks that this Court reverse the judgment for summary judgment.”
10
Append a certificate of compliance. You must certify that you have followed all of the court’s rules in your brief. The court should have a form that you can use as a guide.
- A form is often included in the court rules. These are the rules you must certify as having followed.
11
Follow all court rules to the letter. If the court limits the number of words, do not go over. If they want a cover to look a certain way, follow their directions. Briefs that do not comply with rules will be rejected.
- If you have a particularly strong case, consider hiring an attorney so you don’t lose simply because you did not comply with the court’s procedural rules.
12
File the appellate brief. You will have to provide the court with a specific number of copies of the brief. The specific number will be in the rules.
- You must also serve a copy on the other party along with a Notice of Filing. The Notice of Filing may have to be notarized.
13
Read the other party’s response. The respondent will argue that summary judgment was properly granted. Read the brief closely and see if the respondent rebuts all of our arguments. If she ignores one or more of your arguments, then that is strong evidence that she doesn’t have a good response.
- On a sheet of paper list all of your arguments and then try to match up the respondent’s counter-arguments.
- Now come up with arguments to rebut all of the respondent’s counter-arguments. Go through the record and find evidence to support your contentions.
14
Draft a possible reply. The appellate court may allow you to reply briefly to the respondent’s arguments. This brief should be much shorter and will stick to rebutting the specific points made in the response brief.
- You do not have to draft a reply brief.^{[5]
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Part 5

Part 5 of 6:

Arguing Your Appeal

1
Ask for argument if you want it. You have the option to request oral argument. If it is granted, you will argue before a panel of judges. Usually, appellate courts have 3 judges who hear each appeal.
- Even if you request oral argument, courts frequently deny it. Instead, the court will decide the outcome of the case by simply reading the briefs and looking at the record.
- If you do argue in front of the court, you typically will have between 12 and 30 minutes to make arguments about why you should win the appeal.
- If you have an attorney, she will probably request oral argument. If you are proceeding pro se, then you might not want to argue. Oral arguments require intense preparation and knowledge of the law.
2
Prepare for oral argument. Should you request and be granted oral argument, you will need to prepare. Your argument should focus on the points that you set out in your brief, focusing on what you think are your strongest points. The judges will be able to ask you any questions that they want related to your case.
- The most important thing you can do to prepare is come up with a list of questions. Read the respondent’s brief and note the arguments made. Then write out your responses. Your responses will probably sound similar to the arguments you made in your brief.
- For example, if the respondent argues that you never presented evidence that there was a contract, then you will need to mention the evidence in the record that supports the existence of a contract.
- Practice your answers with friends. Have them pretend to be judges.
3
Watch oral argument. To get an idea of what to expect, you can attend oral arguments at the courthouse. Watch how the attorneys comport themselves and how they answer questions.
4
Argue your appeal. Be sure to speak slowly and always call the judge “Your Honor” or “Judge.” Begin right off with your request and your arguments.^{[6]
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- For example, state, “We request that summary judgment be reversed because there are three triable issues of material fact.” Then start discussing those issues.
- Stay calm. Though it is perfectly normal to be nervous, treat the oral argument like a discussion between you and a stranger who knows something about the case but not as much as you do.
- If a judge asks a question, stop talking immediately and listen to the entire question.^{[7]
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- Do not ask questions of judges. They are used to asking the questions, not answering them. If you don’t understand a question, try to answer it as best you can. Say something along the lines of, “If I understand the question correctly….” The judge will jump back in to clarify if he wants.^{[8]
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Part 6

Part 6 of 6:

Taking Next Steps

1
Read the opinion. Appellate courts almost always publish an opinion after they decide a case. You or your attorney will receive a copy. In the opinion, the court should discuss why it has accepted or rejected your arguments.
2
Consider another appeal. If you lose, you have the option of asking the full appellate court (usually 9 or more judges) to reconsider the case. You also could appeal to the next higher court—all the way up to the Supreme Court of your state or the Supreme Court of the United States, depending on your case.
- However, the highest courts (either state or federal) usually can choose to take cases and are not required to take appeals. Therefore, even if you do continue to appeal, prepare yourself for the court declining to hear your case.
- It is also highly unlikely that you can get an appeal reversed. If you have been proceeding pro se, you should meet with an attorney to discuss whether a second appeal is even worthwhile.
3
Comply with the court’s order. If you win, the order of summary judgment will be reversed and the case will be sent back to the trial court for trial.
- If you lose, then the trial court’s judgment against you will stand.
4
Consider settling the case. If you win your appeal, you should consider trying to negotiate a favorable settlement with the opposing party instead of proceeding to trial. The opposing party will probably be more willing to settle in a way that is favorable to you.^{[9]
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- Additionally, even if you won your appeal, keep in mind that proceeding to trial is a risk and you could lose, regardless of whether you won the appeal or not.