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How Not to Lose your Appeal at Trial

Author johnbsims3
Admin Male

#1 | Posted: 22 Dec 2006 06:43 
Oops! I Forgot to Object!- Or, How Not to Lose your Appeal at Trial

This is one of the most important articles I've posted to date. It involves very important trial/appellate issues and should be studied by every trial attorney who reads this blog. Important stuff...enough said!

When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two." Protect Our Water v. County of Merced, (2003) 110 Cal.App.4th 362, 364.

To fully understand how a trial attorney can assist in the appellate process, one must appreciate the differences between trial lawyers and appellate practitioners. The trial lawyer must take a naked set of facts and attempt to weave them into a story. This story must be persuasive to a jury or the court. Before the trial lawyer comes along, there are no transcripts or records. It is up to the trial lawyer to create them.

Even though appellate attorneys can be creative in fashioning their briefs, they are limited to creating a story or legal argument based on an existing record. They are dependent on the record created by the trial lawyer. In that way, the two must work together. All too often, however, the trial lawyer fails to consider the need to create a record that will allow the appellate attorney to make a persuasive argument either in support or against the findings below.

1. The Importance of the "Record."
The "record" consists of the Clerk's Transcript or an appendix of the documents filed with the lower court prepared by the parties, the Reporter's Transcript of the oral proceedings, and the exhibits.

If you are the appellant, you have the burden of showing error on an adequate record. Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209. That means you must produce enough of the record to show that an error occurred. "'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.'" Gee v. American Realty & Const., Inc. (2002) 99 Cal.App.4th 1412, 1416.

The appellant faces a difficult challenge in overturning a judgment. Because the judgment is presumed correct, the odds are against the appellant. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141. The statistic varies from court to court; however, the odds for a reversal are approximately 10-25%. That means a 75-90% chance of failure. This principle follows from the policy of ensuring the finality of judgments. Even though it might not be comforting to the appellant, it makes sense that the odds are in favor of the judgment; otherwise, there would be a mad dash to the appellate courts by a losing party every time a trial was concluded.

That doesn't mean the respondent can rest on the laurels of victory and do nothing. The respondent must ensure there is enough of a record to show that the judgment was free from error. While being a respondent may be more of a passive position, the respondent should also be vigilant is raising objections, defenses, and explanations, and countering appellant's argument whenever possible.

As a fundamental appellate principle, a party cannot raise arguments for the first time on appeal. "It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal." In re Marriage of King (2000) 80 Cal.App.4th 92, 117. But see, Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316 ["[W]e have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts."]

The trial lawyer must fully understand the implications of this principle. Not only must the argument be raised below, but it must also appear in the record. If you raise the argument in an unreported chambers or sidebar conference, it is as if you never raised it at all. This principle also requires that the trial lawyer not only think about trying the case at the lower court level, but it requires the trial lawyer to think about potential arguments on appeal. Since appellate lawyers are frequently retained after the trial, some arguments may be lost at the trial level because they were not made or preserved on the record.

In non-jury cases, the trial attorney's failure to preserve issues often arises in connection with the preparation of the statement of decision. Code of Civil Procedure 632 and 634; see also California Rules of Court, Rule 232. Requesting, preparing and objecting to the statement of decision are not empty exercises. There are real (and very often unpleasant) consequences in failing to get a comprehensive and accurate statement of decision. "A statement of decision is as much, or more, for the benefit of the Court of Appeal as for the parties. It 'is our touchstone to determine whether or not the trial court's decision is supported by the facts and the law.'" In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1011.

2. Know your standards of review.

Oddly enough, trial lawyers do not seem concerned with the standard of review, believing that the concept is something intended for appellate review. If they do everything right and win their cases, then the standard of review on an issue will never come into play.

For the appellate lawyer, that is one of the first questions that they ask. The standard of review provides a filter that determines how the lawyer will view the case. It is also provides the appellate justices with guidance as to how they can view and ultimately decide an issue. "In every appeal, the threshold matter to be determined is the proper standard of review the prism through which we view the issues presented to us." Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 494, 1500.

There are three standards of review, and for any particular issue, these standards can be mixed:

a. Substantial evidence
A judgment must be supported by "substantial" evidence. This term is misleading to some extent, suggesting that a weighing process is employed. Indeed, it is not required that the judgment be supported by more evidence than is presented against it. The respondent need only demonstrate that there is substantial evidence supporting the judgment. Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873. This standard respects the role of the jury or trial court in resolving questions of fact while confirming the appellate court's jurisdiction to decide questions of law. Tupman v. Haberkern (1929) 208 Cal. 256, 262-263.

The evidence must be of "ponderable legal significance," "reasonable . . ., credible, and of solid value . . ." based on a review of the entire record. Kuhn v. Department of General Services (1994) 22 Cal. App.4th 1627, 1633. Once the record establishes the existence of such evidence, the reviewing court must affirm even if it would have ruled differently. It cannot substitute its own deductions and will rarely consider credibility, unless the evidence shows certain acts or happenings were physically impossible/implausible. Rupf v. Yan (2000) 85 Cal.App.4th 411, 429, fn. 5.

This is a tough standard because it is very rare that respondents don't have any evidence supporting their case. For instance, a "mere scintilla of evidence," illogical inferences not based on the record, and inferences that are the result of mere speculation or conjecture will not support a finding of substantial evidence. Kuhn v. Department of General Services, supra, at p. 1633. If you proceed on this standard, then you must present the entire record of the evidence both for and against the issue or else the record will not permit a meaningful review.

b. Abuse of discretion The reviewing court will not disturb a discretionary ruling by the lower court unless there is a "clear case of abuse," "miscarriage of justice," or the ruling "exceeds bounds of reason." Blank v. Kirwan (1985) 39 Cal.3d 311, 331. "[A] reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice." Denham v. Superior Court (1970) 2 Cal.3d 557, 566. This standard reflects the belief that trial judges are in a better position to make discretionary rulings.

An appeal based on this standard is also difficult because trial court judges are given considerable leeway in making a decision. That doesn't mean they can refuse to exercise their discretion when required or that their discretion can exceed the bounds of reason. Because the trial court applies its "discretion," it may be helpful to attempt to draw out the court as to its reasoning for a particular decision. That reasoning may show that the decision constitutes a "miscarriage of justice." An exercise of discretion may come into play in unreported chambers or sidebar conferences. If so, make sure you have a reporter there to record the conference.

c. Independent (or "de novo") review
>From the appellate lawyer's standpoint, the independent standard of review offers the best possibility of a reversal. That means the court of appeal will look at matter anew and is not bound by the findings of the trial court. Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799. "The de novo standard of review also applies to mixed questions or law and fact when legal issues predominate." Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.

While that means you may be less dependent on a reporter's transcript of the lower court's decision, it doesn't mean you can avoid your job to produce an adequate record. The justices may be interested in knowing what the lower court was thinking; however, you are still bound by the rule that your arguments must be raised below. The record should also reflect the trial court's ruling on objections.

3. How Problems Arise:

a. Failure to Object.
At trial, the attorney must state the grounds for an objection. Evidence Code 353(a). "Evidence Code section 353 does not exalt form over substance. No particular form of objection or motion is required; it is sufficient that the presentation contains a request to exclude specific evidence on the specific legal ground urged on appeal." People v. Morris (1991) 53 Cal.3d 152, 188 (disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824.)

This problem frequently arises in connection with summary judgment motions. Be sure to follow California Rules of Court, Rule 343 and 345 regarding the format for written objections. It is recommended that your objections be presented in writing and in advance of the hearing date, rather than depending on the presence of a court reporter. See also Code of Civil Procedure 437c(b)(5), (c) and (d).

The failure to object waives any argument, except in very limited circumstances, such as jurisdictional grounds or new authority. If you don't, your objection will be deemed waived, Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1, unless the record shows it would have been futile to continue to object or ask for a ruling. City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784.

It is not enough that you made a general objection without a ground or objected on a different ground. If you object on one ground, that will not preserve the objection on another ground. People v. Holt (1997) 15 Cal.4th 619, 669, modified at 15 Cal.App.4th 1385A. Nor should you rely on a "continuing objection" to preserve the error. Be clear in making a specific objection to the evidence and possibly renew the objection when the questioning exceeds the scope of your original objection or too much time has passed since the original objection.

If the evidence has already been given, make a motion to strike it and obtain a ruling on that motion. If you disagree with the court's ruling, note your objections, otherwise you may have waived any argument that the ruling was incorrect.

b. Failure to Obtain a Ruling on your Objection.

You must also obtain a ruling on your objections from the court. City of Long Beach v. Farmers & Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784. It's easy to get lost in discussions with the court and opposing counsel, and quite often under these circumstances, a ruling on an objection will be forgotten.

At the hearing on motions for summary judgment, make sure the court rules on your objections. If you have made numerous objections, figure out which ones are really important and secure rulings on them. Your objections will also be deemed waived in motions for summary judgment. Code of Civil Procedure 437c(b)(5), (c) and (d); see also Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1540.

c. Failure to Make an Offer of Proof to Excluded Evidence.
If evidence is excluded, you must make an offer of proof to show what the evidence would have been, who the witness is, and to what issue it is relevant. "Normally the exclusion of evidence will not be considered on appeal unless the substance, purpose and relevance of the excluded evidence was made known to the trial court," unless the court has clearly stated it is excluding an entire area of evidence. Pacific Gas & Electric Co. v. Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142; Evidence Code 354 [the offer of proof should include "the substance, purpose, and relevance of the excluded evidence . . ."] "Merely setting forth the substance of facts to be proved does not constitute compliance with Evidence Code section 354, subdivision (a)." Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168 [The offer of proof should include the specific testimony to be elicited, its purpose, and the person giving the testimony.]

d. Problems with the Statement of Decision.
The statement of decision provides trial court's reasoning on disputed issues and can be used to determine if the reasoning is supported by the evidence or the law. "A failure to request a Code of Civil Procedure section 632 statement results in a waiver of such findings. . ." In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647. The statement of decision need only address ultimate facts and the law upon which the court relies; it need not deal with tangential or evidentiary details. "'[T]he law is well settled that if findings are made on issues that determine the case, other issues become immate-rial and a failure to make additional findings does not constitute prejudicial error. . ." Vukovich v. Radulovich (1991) 235 Cal.App.3d 281, 295.

If the statement of decision is waived or defective, the doctrine of "implied findings" may be applied, i.e., the appellate court will presume the trial court made all factual findings necessary to support the judgment for which substantial evidence exists, making an appeal more difficult, if not impossible. In re Marriage of Ditto, supra, at pp. 647-648. The doctrine of implied findings applies where the court fails to resolve a "principal controverted issue"; this is grounds for reversal if this omission is timely brought to the court's attention; otherwise, it may be deemed waived. You may also waive the point if you fail to object or note the defects in the statement because you have not allowed the trial court to correct the defects. Code of Civil Procedure section 634.

The failure to render a statement of decision after a timely and proper request is reversible per se. In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010.

It is not enough to simply request a statement of decision, you must also object to errors in the statement. Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134. It is not sufficient to submit a counter-proposed statement of decision. The tentative decision or memorandum of intended decision is not enough; it is not binding on the court and is superseded by the judgment. California Rules of Court Rule 232(a); In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 672; In re Marriage of Ditto, supra, at p. 647. The court may state the tentative decision will be the statement of decision absent a formal request.

e. Stipulations
Be very careful in entering into stipulations. While it may seem an expeditious way of streamlining your trial, you may have waived your client's right to appeal. In re Marriage of Sheldon (1981) 124 Cal.App.3d 371, 383-384. You may want to make sure that the terms of all stipulations are on the record.

f. Unreported Conferences
As noted above, these unreported conferences may be made in the judge's chambers or during a sidebar conference. If you believe that a crucial issue will be discussed, get the reporter to record the conference. If you fail to do so, the reviewing court will presume the unreported proceedings would have shown the absence of error.

If you are unable to have the reporter present in chambers, try to get the gist of the conference on record once you return to court or file a declaration with the court as to what occurred in the conference.

g. Failure to Arrange for a Court Reporter for Trial
This may be a matter of being penny-wise, pound foolish. If your client does not want to arrange or pay for a court reporter for trial, it may be tantamount to waiving any right to appeal on certain grounds. If objections are not reported, it is as if they were never made. This failure is a death knell for substantial evidence appeals. "[I]t is presumed that the unreported trial testimony would demonstrate the absence of error." Estate of Fain (1999) 75 Cal.App.4th 973, 992. You will fare no better unless it is too blatant for the court to presume otherwise if you fail to show abuse by presenting the lower court's reasoning and actions.

h. Understand that Your Words may be Read by Others Not Present and Try to be Clear in your Use of Language.
Trial lawyers are frequently surprised when they review the reporter's transcripts. What sounded like an eloquent argument can appear as a batch of incomplete sentences that drift off. While trial lawyers may feel they are being clear at trial, this clarity may evaporate when the sole source of information is the transcript. The reader cannot see that you are pointing to something or making gestures that enhance communication. You should be clear in your references, such as referring to "he," "she," or "it." It may take more time or seem too formal, but try to include names.

Referring to exhibits presents its own problems. You may introduce an exhibit and then continue to refer to it in later questioning. As much as possible, continue to refer to exhibits with a number and a description. Be especially careful if you are referring to more than one or anyone is confused about which number is next.

In examining witnesses, make sure their responses are audible. Clarify the record by indicating if the witness is nodding or making other gestures. If you are asking a witness to point to something, make sure the reader can understand what the witness intends.

This problem requires that the trial attorney step outside of the proceedings to some extent, and envision how such exchanges are viewed by a justice who is limited to reading a reporter's transcript. Perhaps it would be helpful to imagine the jurors or judge are blind; communicate in a way that aids them in visualizing your case.

i. Do not forget to move your exhibits into evidence.
1. If you do not, they will not be considered by the reviewing court. California Rules of Court, Rule 5(b)(3). You may be able to cure this defect where all parties refer to the evidence and conduct themselves as if it were admitted. For instance, a deposition not offered and marked for identification may not be considered on appeal even though it was filed with the court below. Beverly Hills Nat. Bank v. Glynn (1968) 267 Cal.App.2d 859, 866, fn. 1, citing Wulferdinger v. Pickwick Stages System (1930) 105 Cal.App. 509. The court may ignore this flaw in certain cases. "The failure to formally and expressly offer the documents into evidence is not necessarily fatal, where the court and both parties treat the documents as if they were in evidence." Komas v. Future Systems, Inc. (1977) 71 Cal.App.3d 809, 812; Estate of Connolly (1975) 48 Cal.3d 129, 132, fn. 4; Walsh v. Walsh (1952) 108 Cal.App.2d 575, 579.

j. Don't Forget to Present your Evidence; an Attorney's Argument and Offers of Proof are not Evidence.
This sounds rather obvious; however, it does occur that a trial lawyer will refer to evidence, believing it has been presented, and discover the only "evidence" was an unsupported argument. Evidence not presented below will not be considered on appeal. Don't rely on your trial brief or a memorandum of points and authorities to convince the court of your position; they are not evidence. Brown v. Boren (1999) 74 Cal.App.4th 1303, 1319.

Remember to prepare a written request for judicial notice and obtain a ruling on it. Evidence Code section 453.

Depositions and interrogatory responses are not automatically part of the record, even if lodged with the trial court. They should be read into the record or attached to an appropriate declaration.

Make sure declarations comply with the rules of evidence, such as showing they are based on personal knowledge. Evidence Code 702, Code of Civil Procedure 2015.5.

k. Obtaining a Special Verdict.
Challenging a judgment based on a general verdict makes the appellant's task much more difficult. To prevail, the respondent need only show that one possible ground is free of error and supported by substantial evidence. "The 'general verdict rule' relied on by the Court of Appeal provides that where several counts are tried, a general verdict will be sustained if any one count is supported by substantial evidence and is unaffected by error, despite possible insufficiency of evidence as to the remaining counts." Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157. "This rule assumes that the jury found on the cause of action or theory which was supported by substantial evidence and as to which there was no error." McCloud v. Roy Riegels Chemicals (1971) 20 Cal.App.3d 928, 936. But see, DeTomaso v. Pan American World Airways, Inc. (1987) 43 Cal.3d 517, 533, Cobbs v. Grant (1972) 8 Cal.3d 229, 238-239; Rodriguez v. Kline (1986) 186 Cal.App.3d 1145, 1150.

Damages should also be segregated. If they are not, it may be impossible to argue the jury failed to award damages for specific elements, such as medical specials or loss of future earnings. Moore v. Preventive Medicine Group (1986) 178 Cal.App.3d 728, 746-747. "'Unfortunately, appellant did not seek a segregation of the elements of damage from the jury, and the jury was not required to do so without such request.'" English v. Lin (1994) 26 Cal.App.4th 1358, 13689, citing from Enriquez v. Smyth (1985) 173 Cal.App.3d 691, 700.


Of course, every trial lawyer would love to win the case and have the defendant recognize the futility of challenging the jury's verdict or the judgment. Unfortunately, and despite our best efforts, a clear win doesn't always occur. The trial attorney must protect the hard work of trying a case and the client's best interests by preserving the record so that an appellate attorney can continue on with the fight, which hopefully will culminate in a victory for the client.

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How Not to Lose your Appeal at Trial
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