Appealing Strategies
WHY AN APPELLATE SPECIALIST?

    Trial attorneys rarely think about the possibility of losing. Sometimes they win. In that case, they need to make sure they can hold on to their victory through an appeal. Other times, despite their best efforts and the righteousness of their cause, trial attorneys lose. They need to get a second chance. That is where an appellate attorney is helpful.

Prior to an Appealable Order or Judgment:
• To Provide Pre-Trial Advice and Planning
• To File or Defend Extraordinary Writs
• To File or Defend Summary Judgment or Summary Adjudication Motions
• To Prepare or Oppose Statements of Decision
• To Identify Appealable Orders

After an Appealable Order or Judgment:
• To Independently Review the Case
• To Identify Winning Issues
• To Identify Distracting Issues
• To Identify Weaknesses in the Case and Assess the Cost and Chances of Success
• To Stay a Judgment
• To Posture the Case for a Possible Settlement
• To Pursue the Appeal on the Merits
• To Pursue Review to the Next Level  

Prior to an Appealable Order or Judgment

     To Provide Pre-Trial Advice and Planning – Before or during trial, consultation with an appellate attorney is helpful in focusing on the winning theories and making sure the theory is properly presented to the court. An appellate attorney can help in identifying and preserving evidentiary issues, preparing and arguing jury instructions, preparing factual findings, seeking and preparing statements of decision, and preparing new trial and other post-trial motions. Because appeals require an adequate record, many worthy appeals are barred because the trial attorney failed to timely request a statement of decision, failed to make required objections during trial or summary judgment, or failed to make a timely and complete motion for a new trial. If the trial attorney consults an appellate attorney, many of these traps can be avoided. In the meantime, the client can avoid the duplication of efforts between the trial and appellate attorneys should an appeal or response to an appeal be necessary.
Back to top

     To File or Defend Extraordinary Writs – Sometimes there is a major adverse ruling during the pre-trial process. An appellate attorney can prepare or oppose writs for discretionary review of interlocutory trial court rulings. There may be serious concerns about discovery orders, evidentiary issues, custody decisions, sales or conveyances of real estate, or other matters that require emergency relief. If an appeal will not afford an adequate remedy to prevent irreparable harm, a writ may be the only way to obtain a remedy.
Back to top

     To File or Defend Summary Judgment or Summary Adjudication Motions – In business and some personal injury cases, it may be appropriate or necessary to prepare or respond to summary judgment or summary adjudication motions. These motions often dispose of the entire case or a critical issue. They are often the subjects of appeals. These motions are fraught with procedural pitfalls, which may prevent an effective appeal.
Back to top

     To Prepare or Oppose Statements of Decision – In cases tried before a judge, such as probate and family law, it is important to understand the need for a timely request for a statement of decision. Without a statement of decision, the court of appeal will assume the trial court made all factual findings necessary to support the finding. This could mean a decision that might otherwise be reversed must be affirmed.
Back to top

     To Identify Appealable Orders – Most appeals occur after the case has gone to a verdict or judgment. However, in certain areas of the law, like family law and probate, many court orders are appealable and, in order to preserve the issue, an appeal must be filed or the claim could be lost for good.
Back to top

After an Appealable Order or Judgment

     To Independently Review the Case – An appellate specialist reviews the case from a new perspective. What trial counsel or the client thinks is the winning issue may not warrant appellate review. On the other hand, an appellate attorney may spot something that is the key to overturning the decision
Back to top

     To Identify Winning Issues – More often than not, the best issue for an appeal is a procedural issue. Procedural matters are often dry and boring and of little or no interest to the client. For the experienced appellate attorney, certain errors stand out as having a high likelihood of success on appeal. While they may not be the focus of the entire appeal, the issues must be preserved and presented.
Back to top

     To Identify Distracting Issues – Often clients and their trial counsel are focused on the facts of the case. They cannot believe the jury or the court did not get their side of the story or understand the damage that was done to them or why they did what they did. Factual issues, especially in highly charged personal cases like family law, probate, or business disputes, rarely sway an appellate court. By focusing on the client’s side of the story and the rightness of the client’s cause, a good legal argument may be lost on the court. The client’s version of facts, as supported in the record, can be used to encourage the court to focus on the issues that will actually give the client relief.
Back to top

     To Identify Weaknesses in the Case and Assess the Cost and Chances of Success – Cases on appeal are viewed through various standards of review. The standard of review has a significant effect on whether there will be appellate relief. Factual cases have less chance of success than cases with legal issues. A good case may have problems if something was not preserved below because the attorney failed to request a statement of decision or file a new trial motion or failed to make a timely and proper objection. Some cases are not worth appealing either because they are too costly or because they are frivolous. In a few cases, a reversal and a remand may give the opposing party a chance to improve their position. A client needs an objective opinion of the chances for success, whether there may be negative ramifications, and the cost of proceeding with an appeal.
Back to top

     To Stay a Judgment – An appeal may be of little or no help if the judgment is not stayed. If the property or money is gone, the appeal may result in a hollow victory.
Back to top

     To Posture the Case for a Possible Settlement – Filing a non-frivolous appeal may be helpful in focusing on vulnerabilities in the winning parties’ case and make the case a good prospect for voluntary negotiations or the mediation programs in certain appellate courts.
Back to top

     To Pursue the Appeal on the Merits – An appellate specialist is familiar with the rules, writing appellate briefs, responding to briefs, and preparing for and attending oral argument. An appellate specialist is aware of legal trends and how to fit the case within the developing law. Having an appellate attorney take the lead or participate in briefing can be efficient for both the client and the trial attorney.
Back to top

     To Pursue Review to the Next Level – While review by the California Supreme Court or the United States Supreme Court is rare, if the issue is properly framed in the context of other circuits, districts, divisions, and areas of interest to the courts, review is more likely.
Back to top



© 2011 Vicki Marolt Buchanan, A Professional Corporation