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The Compleat Litigation Team: The Role of Appellate Counsel in Litigation

By: Honey Kessler Amado

As Published in the Los Angeles County Bar Association Magazine
Litigation Section, Volume 11 #1, Fall 1994

I have an appellate case on my desk which may lose on the statement of decision. A pity, too, because the record so completely supports the court's decision. But the statement of decision does not adequately explain the court's factual basis for its decision and, worse, includes statements not supported by the record. That case will turn on whether the court can go behind the statement of decision to look at the record.

The statement of decision was prepared by trial counsel, who had done a superb job in the trial. But in readying the case for appeal, he needed assistance of appellate counsel and failed to seek it. What, then, is the role of appellate counsel? When should appellate counsel be called into a case?

    Much to the disappointment of many litigants, the appeal is not a "second bite at the apple." An appeal is not a retrial. The appellate court is looking exclusively for judicial error, not attorney error. Judicial error occurs when a decision is not supported by the evidence, when the court has abused its discretion, or when the court has incorrectly applied the law. When reviewing the evidence to find evidence which supports the trial court or to determine whether the court had abused its discretion, the appellate court will accept all factual findings of the trial court as true. This because the trial court alone is the trier of fact. Thus, the argument that a witness was not credible is of little consequence; the appellate court assumes that it is the trial court who was best able to evaluate the testimony and nuances of a witness. Similarly, if the evidence will support any one of several competing conclusions, the decision of the trial court will not be overturned.

    "Sufficiency of the evidence" must not be understood as "most of the evidence." Sufficiency of the evidence refers to any evidence which supports the record. The testimony of a single witness, even the party himself, may be the sufficient evidence necessary to support the judgment.

    Therefore, it is futile to argue that the trial court should have found differently on the facts. Fewer arguments than this are more revealing that a litigator has ventured into the Court of Appeal; fewer arguments are more pleasing to respondent's counsel.

    These two standards of review, 1) sufficiency of the evidence and 2) abuse of discretion, drive the appellate case. While there may be some overlap in presenting the case on appeal, different issues mandate a different standard of review. It is important that counsel know and understand the correct standard of review when briefing a case.

    It is precisely because the appeal is governed by the standards of review that one cannot simply "cut and paste" one's trial court pleadings into an appellate brief.

    Appellate counsel bring a detached, academic dimension to a case. Early in the case appellate counsel can assist in brainstorming the causes of action or the evidence necessary to create a complete record. Later in the case appellate counsel can coolly evaluate whether the judgment or order is supported by the evidence or whether there has been an abuse of discretion.

    Many trial attorneys become so involved in their cases, or in a particular case, that they lose the ability to evaluate the merits of an appeal. Cases that should win sometimes do not -- through no error of counsel or of the judge. Appellate counsel can see that -- and say that. The skills of an appellate counsel differ from those of a litigator. Typically appellate counsel excel at research and writing. These are often not the strengths of the trial attorney, whose talents lie in the fast-paced, rapid fire tension of the courtroom. The strengths of each complement the other: the client is well served by both.

    I was once asked when I begin preparing for oral argument. I answered, "When I'm drafting my brief." Throughout the briefing process I ask myself whether my theory or dramatic turn of a phrase can be supported to a questioning justice.

    So, too, a litigator should consider the appeal from the inception of the case. Everything the litigator does in preparation of the case should consider the record and arguments on appeal. Appellate counsel should be called into the case at the following times, the earlier the better:

    1. The Inception of the Case. At this juncture, counsel can review the pleadings and suggest where holes in the presentation exist or suggest what evidence will be required. It is surprising how many records lack sufficient evidence to establish the elements of a cause of action or to support an argument.

      Appellate counsel is viewing the documents or evidence with an eye toward crafting a complete statement of facts and an argument for sufficiency of the evidence. Appellate counsel, initially a stranger to the facts, cannot rely on extrinsic information or knowledge to close the gaps in the declarations and evidence.

      Appellate counsel can also help generate additional arguments for the trial court proceedings. An argument which is not presented to the trial court is deemed waived. With a few esoteric exceptions, an argument cannot be raised for the first time on appeal.

    2. During Trial, Before the Matter is Submitted. Before the end of trial, trial counsel must begin to think carefully about the statement of decision and post-decision motions. Appellate counsel is essential to these considerations.
      1. The Statement of Decision. A statement of decision explains the factual and legal basis for the court's decision of each principle, controverted issue for which the statement is requested. The failure to request a statement of decision on a particular issue is deemed to be a waiver of the statement of decision on that issue.

        If the statement of decision is waived, either expressly or by failing to request one, it is presumed on appeal that the trial court found in favor of respondent on all facts necessary to support the judgment for which substantial evidence exists in the record. Thus, it is imperative to request a statement of decision. Appellate counsel should be consulted or retained to draft the request.

        Once the statement of decision is requested, one party will typically be directed to prepare it. Appellate counsel will know what content is desired relative to the issues on appeal.

        After the proposed statement of decision is submitted, the other parties have an opportunity to object to it. The objections to the statement of decision raise any factual errors in the statement, contest allegations of evidence or testimony which is not in the record, and argue -- with citations -- why the decision is legally incorrect.

        The objections preserve the arguments of error in the statement of decision. A litigant cannot raise an objection to the adequacy or accuracy of a statement of decision on appeal unless the objection had been raised to the trial court.

      2. The Motion for New Trial. The motion for new trial is a wonderful tool which, amongst other grounds, allows a litigant to contest the sufficiency of the evidence or the application of the law in the trial court. It has been applauded as an "understandable and commendable" alternative to an appeal.

        The motion is a pre-appeal opportunity to contest the sufficiency of the evidence and the application of the law. If the trial court corrects itself, the need for an appeal is obviated, at great savings to the client.

        The motion for new trial in some cases is an opportunity to rehabilitate the record by attaching evidence which may have been omitted from the initial presentation.

      3. The Notice of Appeal and Designating the Record. While trial counsel can certainly file the notice of appeal, counsel often overlook that the record must be designated within ten days of filing the notice of appeal. Here, too, appellate counsel can be helpful in determining what form the record should take. For example, in a given case an appendix in lieu of clerk's transcript might be a reasonable alternative to a clerk's transcript, or the client may prefer to seek a waiver of the reporter's transcript fees to delay payment of these fees, or the client may be able to lodge the reporter's transcript rather than designate it altogether. These are all options which to be discussed with appellate counsel.

        If one requests a clerk's transcript, not all of the pleadings may be necessary to the appeal. It is cost effective to request only what is necessary. On the other hand, as respondent, one should carefully review the notice to prepare clerk's transcript filed by the appellant to determine whether all pleadings necessary to a full review of the issues have been designated. If not, a timely counter-designation should be filed.

        As a colleague once said, "The universe of the appeal is the record from the trial court." It is wise to call in appellate counsel when defining that universe.

Appellate attorneys are specialists. They can enhance the performance and results of trial counsel and, with trial counsel, enhance the chances for success on appeal. Wise are the litigators who call in appellate counsel early. Well served are their clients by this complete, compleat team! 1Incompetency of counsel is only available in criminal appeals. It is not a grounds for appeal in civil litigation.

2Shamblin v. Brittain (1988) 44 Cal.3d 474, 479; Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544; Tupman v. Haberkern (1929) 208 Cal. 256, 262-263. 3Marriage of Slivka (1986) 183 Cal.App.3d 159, 162. 4Association for the Protection of Environmental Values in Ukiah v. City of Ukiah (1991) 1 Cal.App.4th 720, 737. 5Code of Civil Procedure, section 632; Marriage of Ananeh-Firenpong (1990) 219 Cal.App.3d 272, 282. 6Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274. 7Marriage of Flaherty (1982) 31 Cal.3d 637, 645; Denham v. Superior Court (1970)