Utah Bar Journal

In an effort to aid the inexperienced appellate litigator in his or her efforts to understand and comply with the marshaling requirement, this article will briefly discuss (i) the purpose of the marshaling requirement, (ii) the steps that a party must take to comply with the marshaling requirement, and (iii) the types of appeals for which marshaling is required.

I. Purpose of the Marshaling Requirement
As indicated in the reported cases, the marshaling requirement has two chief purposes. First, because appellate courts are only deemed competent to overturn findings of fact under certain limited circumstances, our appellate system has incorporated several procedural mechanisms that are expressly designed to protect the fact-finding prerogative of the trial courts. One mechanism is the strict standard of review that is used in evaluating a challenge to a finding of fact.2 Another mechanism is the marshaling requirement. In State v. Moore, the Utah Court of Appeals noted that "[t]he process of marshaling the evidence serves the important function of reminding litigants and appellate courts of the broad deference owed to the fact finder at trial."3 By requiring an appellant to catalogue the evidence supporting the trial court's decision, the marshaling requirement thus acts as a clear reminder that appellants should not try to persuade the appellate court that their theory of the case was stronger than that which was advanced by the other side, or that their evidence and witnesses were more compelling; instead, the marshaling requirement reminds us that appellate review of a factual determination is strictly confined to an analysis as to whether there was sufficient evidence to support the particular factual conclusion that was actually reached below.4

The second purpose of the marshaling requirement is a more practical one. Trial courts are gradually exposed to the facts of a case through both the pretrial motion process and through the presentation of the parties' evidence and witnesses at trial. In contrast, an appellate court's exposure to the facts of a case only comes through reference to the record. Absent effective briefing, an appellate court that is reviewing a factual challenge would be forced to wade through hundreds and perhaps thousands of pages in the record in order to gain an accurate sense of how much evidence supported a particular finding. Such a process would not only be inefficient, but it would create the very real risk that an appellate court, starting from scratch, might inadvertently overlook a piece of relevant evidence. To help avoid such a result, the marshaling requirement places the onerous burden of conducting this research on the party who should by disposition be most familiar with the quantum of evidence (or putative lack thereof) that supports the challenged finding. "Thus, an appellate court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research." The marshaling requirement provides the appellate court the basis from which to conduct a meaningful review of facts challenged on appeal.5

II. Satisfying the Marshaling Requirement
There are two chief requirements that must be satisfied in order to properly fulfill the marshaling requirement. First, the marshaling should be correctly located, and second, the marshaling should be thorough.

Location: The Utah Rules of Appellate Procedure are explicit as to the proper placement of the marshaled facts. Rule 24(a) states that

[t]he brief of the appellant shall contain under appropriate headings and in the order indicated:

(a)(9) An argument. The argument shall contain the contentions and reasons of the appellant with respect to the issues presented . . . . A party challenging a fact finding must first marshal all record evidence that supports the challenged finding.6

The courts have repeatedly stressed that this placement rule should be observed. Among the reported cases discussing this requirement are those in which appellate courts have rejected a party's attempt to place the marshaled evidence in the fact section of the brief7 or in an appendix,8 or where the party has instead attempted to comply with the requirement by scattering the marshaled evidence throughout the entirety of the brief.9 In order to ensure that the requirement is properly satisfied, a party challenging a fact finding should therefore always place the marshaled evidence in the argument section of his or her brief.

Thoroughness: As noted above, Rule 24(a)(9) states that a party challenging a fact finding "must first marshal all record evidence that supports the challenged finding."10 Though many overly zealous advocates may be tempted to read this requirement less than literally, the reported cases clearly indicate that the courts are serious about enforcing the requirement under its express terms. In one oft-quoted passage, the Utah Court of Appeals set forth the requirement as follows:

[t]he marshaling process is not unlike becoming the devil's advocate. Counsel must extricate himself or herself from the client's shoes and fully assume the adversary's position. In order to properly discharge the duty of marshaling the evidence, the challenger must present, in comprehensive and fastidious order, every scrap of competent evidence introduced at trial which supports the very findings the appellant resists. After constructing this magnificent array of supporting evidence, the challenger must ferret out a fatal flaw in the evidence. The gravity of this flaw must be sufficient to convince the appellate court that the court's finding resting upon the evidence is clearly erroneous.11

All too often, it seems, appellants attempt to evade the strictures of this requirement by either selectively omitting particularly unfavorable pieces of evidence from their marshaling or by instead mischaracterizing the unfavorable pieces of evidence that have been included. Neither strategy is acceptable.12 Similarly, it is also not acceptable to attempt to evade the requirement by complaining of its effect on a brief's page-length,13 or by instead arguing that marshaling should not be required due to the paucity of evidence that supports the trial court's finding.14

In short, a proper satisfaction of the marshaling requirement entails a "listing [of] all the evidence supporting the finding that is challenged. Once the evidence is listed . . . with appropriate citation to the record, the appellant must then show that the marshaled evidence is legally insufficient to support the findings . . . ."15 If a party fails to fully comply with the requirement, the appellate court is required to assume that the findings are correct,16 and the appeal will thus necessarily fail.

III. Circumstances Under Which Marshaling is Required
Rule 24(a)(9) states that marshaling is required for parties who are "challenging a fact finding." In addition to the requirement's applicability to straightforward factual challenges, there is also a line of cases applying the requirement to certain legal questions. Specifically, appellate courts have held that the requirement is applicable to appeals from: (i) a trial court's denial of a motion for a directed verdict;17 (ii) a trial court's denial of a motion for a judgment notwithstanding the verdict (JNOV);18 and (iii) a trial court's denial of a motion for a new trial.19 The common link between these three motions is that appellate review of their denials involves the sufficiency of the evidence standard of review.20 As such, there is a certain degree of consistency in requiring an appellant who must establish that the collected evidence was insufficient to first marshal the evidence that actually supports the challenged ruling. On a broader scale, it is worth noting that these examples seem to indicate that the precise contours of the marshaling requirement are still open to interpretation. It thus remains to be seen whether the appellate courts will further expand the requirement's applicability to other ostensibly legal questions that also involve evidentiary reviews.

IV. Conclusion
In short, the marshaling requirement is a procedural mechanism that is designed to protect the trial court's fact-finding prerogative and to promote the efficiency and quality of an appellate court's review. Under the terms of the requirement, a party who is challenging a trial court's finding of fact is required to include a listing of all pieces of evidence that support the trial court's finding in the argument section of the opening brief. Failure to comply with this rule will result in dismissal of the party's claim. Finally, there is authority for the proposition that marshaling is not only required on straightforward challenges to findings of fact, but that it is also required on any challenge that involves a sufficiency of the evidence review.

1. The author wishes to thank both Judge Norman H. Jackson of the Utah Court of Appeals and Andrew Petersen for their helpful comments and suggestions in preparation of this article. Any views or errors that are contained herein, however, are solely the responsibility of the author.

2. See, e.g., Utah Rules of Civil Procedure 52(a) ("Findings of Fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.")

3. 802 P.2d 732, 739 (Utah Ct. App. 1990).

4. See, e.g., State v. Goddard, 871 P.2d 540, 543 (Utah 1994) ("We will not sit as a second fact finder, nor will we determine the credibility of witnesses. That is the prerogative of the jury."); ProMax Dev. Corp. v. Mattson, 943 P.2d 247, 255, 257 (Utah Ct. App. 1997) ("[I]t is the trial court's role to assess witness credibility, given its advantaged position to observe testimony firsthand, and normally, we will not second guess the trial courtÕs findings in this regard. . . . We emphasize, . . . that this court does not sit as a fact finder.").

5. State v. Larsen, 828 P.2d 487, 491 (Utah Ct. App. 1992); see also, Wright v. Westside Nursery, 787 P.2d 508, 512 n.2 (Utah Ct. App. 1990) ("Wright beseeches us to make a thorough review of the whole record, which fills a box the size of an orange crate. We do not apologize for declining Wright's invitation. The very purpose of such devices as the 'marshaling' doctrine and R. Utah Ct. App. 24(a)(7), requiring that all references in briefs to factual matters 'be supported by citations to the record,' is to spare appellate courts such an onerous burden. Absent exceptional circumstances, our review of the record is limited to those specific portions of the record which have been drawn to our attention by the parties and which are relevant to the legal questions properly before us.").

While accepting that the appellate court should be spared the initial burden of research that accompanies factual challenges, some have argued that the burden would be better carried by the appellee, rather than the appellant. Though there may be some merit to this argument, it is again worth noting that, because of the stringent standard of review, a party seeking to overturn a factual determination clearly faces an uphill battle. Given the long odds against reversal in these circumstances, there is a certain sense of logic and fairness involved in ensuring that the party initiating such an appeal be the one to initially carry the burden and expense that is involved in setting the stage for meaningful appellate review. See, e.g., Crookston v. Fire Ins. Exch., 817 P.2d 789, 799-800 (Utah 1991) (stating "the marshalling [sic] burden" is one that must be carried by "the one challenging the verdict").

6. Emphasis added.

7. See Fitzgerald v. Critchfield, 744 P.2d 301, 304 (Utah Ct. App. 1987) ("[Appellant's] brief contains a heading 'FACTS' under which appellant has set forth both parties' 'versions' of the facts. This does not constitute a sufficient marshaling of the evidence in support of the findings made by the court below. The requisite presentation of supporting evidence is also not found in the argument portion of appellant's brief. Appellant has, therefore, failed to meet his threshold burden on appeal, one that is neither elective nor optional.").

8. See Debry v. Cascade Enters., 879 P.2d 1353, 1360 n.3 (Utah 1994) ("The DeBrys purport to marshal the evidence in support of the verdict in an appendix to their brief which, together with the pages in the brief, exceeds the page limitation allowed by Rule 24(g) of the Rules of Appellate Procedure. This does not comply with the requirement to marshal evidence. It is improper for counsel to attempt to enlarge the page limit of the brief by placing critical facts in appendices.").

9. See Roderick v. Ricks, 2002 UT 84,¦47 n.11, 54 P.3d 1119 ("Though Castleton did mention some evidence favorable to the court's finding, he generally dispersed this evidence throughout his appellate brief. To comply with the marshaling requirement, appellants must marshal all the favorable evidence at the point at which they challenge the factual finding.") (Emphasis added.)

10. Emphasis added.

11. West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (emphasis in original).

12. See Crookston, 817 P.2d at 800 ("Here, Fire Insurance has made no attempt to marshal the evidence in support of the jury finding of fraud. In fact, all Fire Insurance has done is argue selected evidence favorable to . . . its position. That does not begin to meet the marshaling burden it must carry. . . . This failure alone is grounds to reject Fire Insurance's attack on the fraud finding."); State v. Pilling, 875 P.2d 604, 608 (Utah Ct. App. 1994).

13. See Larsen, 828 P.2d at 491 ("Larsen challenges several factual findings of the trial court concerning the nature or extent of their professional relationship, but admits he 'may have fallen somewhat short' in marshaling the evidence. Larsen even goes so far as to suggest that he was prevented from doing so because of page limitations imposed upon him. Our insistence on compliance with the marshaling requirement is not a case of exalting hypertechnical adherence to form over substance. . . . Because Larsen failed to marshal evidence in support of the trial court's findings . . . , we affirm . . . .").

14. See Brown v. Richards, 840 P.2d 143, 149 n.2 (Utah Ct. App. 1992). However, it is worth noting that there is some authority for the proposition that marshaling may be deemed futile in certain circumstances. See, e.g., Campbell v. Campbell, 896 P.2d 635, 638 (Utah Ct. App. 1995). In such circumstances, "appellants are advised to marshal the evidence to the degree possible and then explain the reason for any deficiency. Appellants should not merely ignore the marshaling requirement." Judge Norman H. Jackson, "Utah Standards of Appellate Review: Revised," 12 Utah Bar J. 8, 13 n.8 (1999) (citing and discussing the authority relevant to circumstances in which marshaling might otherwise be deemed "futile").

15. Jackson, id. at 8 at 13 (emphasis in original).

16. See Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998); Johnson v. Higley, 1999 UT App 278,¦37, 989 P.2d 61.

17. See Water & Energy Sys Tech., Inc. v. Keil, 2002 UT 32,¦¦14-15, 48 P.3d 888; Neely v. Bennett, 2002 UT App 189,¦11, 51 P.3d 724.

18. See Debry, 879 P.2d at 1359-60; Crookston, 817 P.2d at 799-800.

19. See Child v. Gonda, 972 P.2d 425, 433 (Utah 1998); Neely, 2002 UT App 189 at ¦11.

20. See Child, 972 P.2d at 433; Crookston, 817 P.2d at 799.