Three Ways a Trial Lawyer Can Strengthen the Odds of Winning on Appeal
by Jeffrey Lewis
This post is the first in an ongoing series about maximizing a party’s chances of prevailing on appeal. Recent court statistics show that in California civil appeals result in affirmance 79 percent of the time, reversal 18 percent of the time and dismissals in the remaining 3 percent of cases. Given the statistically low chance of obtaining a reversal on appeal, it is important that trial lawyers take steps necessary to improve their chances of prevailing on appeal.
1. Preserve and document your arguments. Generally, the court of appeal will not consider an argument raised for the first time on appeal. Common examples of issues that the court will not review on appeal are evidentiary objections not made at trial, affirmative defenses not pled in an answer and claims not pled in a complaint. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767). The Court of Appeal generally limits its considerations to arguments appearing within the four corners of the appellate record. If you are appearing at a court such as Los Angeles Superior Court, which no longer automatically provides court reporters, consider hiring a court reporter in advance to enhance your appellate rights. If you have made arguments in chambers and lost, consider repeating those arguments on the record to preserve the issue on appeal.
2. Consult an appellate specialist as early as possible. Many times a trial lawyer will not consult with an appellate specialist until after the appellate process is well underway and sometimes key
deadlines have passed. For example, when your opponent files a notice of appeal, your time to file a notice of cross-appeal is triggered. An appellate specialist can advise you as to whether a cross-appeal should be filed and the consequences of not filing one. As another example, after a notice of appeal is filed, the appellant will designate the record that the appellate court will consider on appeal. The time for a trial lawyer to respond and counter designate the record on appeal is limited. An appellate specialist can advise you as to what portions of the record should be included for the appeal and how to counter designate in response to an appellant’s deficient notice. Finally, an appellate specialist can assist you with determining whether an issue can be raised on appeal at the end of the case following trial or whether a petition for writ of mandate must be filed. For example, orders denying motion to quash service of process for lack of personal jurisdiction, orders denying or granting motions to expunge lis pendens and orders on motions to compel disclosure of documents under the Public Records Act are all reviewed exclusively by writ petition. If you fail to file a writ, you cannot seek an appeal at the end of the case.
3. Be wary of waiver. If you are appalling a judgment, be careful not to do anything that would be deemed a waiver of the appeal. For example, accepting the benefits of the judgment appealed from could be deemed a waiver of the appeal. (Satchmed Plaza Owners Ass’n v. UWMC Hosp. Co. (2008) 167 Cal.App.4th 1034, 1041-42).
Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys and can advise you about the specifics of your appeal. Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.