by Noella Sudbury
An appeal is not a do-over. The appellate process is unique, complex, and structured in favor of affirming the trial court’s decision. Recent Utah court statistics indicate that in the Utah Court of Appeals, an appellant generally prevails less than 10% of the time. Although the appellate process can be daunting and unpredictable, the following five tips will help lawyers avoid common pitfalls and find their way to a prevailing path:
The appellate process begins at the trial level.
In more than 10% of cases issued this year, an appellate court has declined to reach one or more of the claims on appeal due to a lawyer’s failure to preserve the issue for appellate review. For this reason, when a lawyer tries a case, the lawyer must always have the appeal in mind. To preserve an issue for appeal, a lawyer must present the issue “to the district court in such a way that the court has an opportunity to rule on [it].” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (internal quotations marks omitted). Proper preservation requires a specific and timely objection on the record and citation to legal authority to support it. It requires an attorney to anticipate objections before trial even begins and to prepare a list of objections for trial with supporting law. The more you prepare the objections before trial, the better your objections will be, and the more you will have to work with on appeal. Finally, you must make objections, even if you are afraid it will annoy the judge. If you do not, you risk the likely outcome that an appellate court will decline to review the issue on appeal.
Losing a case does not mean that you should file an appeal.
Many appeals that are lost should not have been filed in the first place. One should not advise a client to appeal merely because the trial court erred or because the client does not like the result. All trial courts err and many clients are dissatisfied, but this does not mean you have an appeal-worthy issue. Instead, whether to appeal depends upon a careful and realistic weighing of the costs and potential benefits to the client. Important considerations may include whether arguments are preserved, what standard of review will apply, whether the error was substantial enough to warrant reversal, and whether the relief in the appellate court will conclude the case, or simply result in a new trial. If the best you can achieve is a new trial, then in determining whether an appeal is worthwhile, you must consider the likelihood of success in the new trial and the time and cost of re-trying the case.
The standard of review matters.
When drafting an appellate brief, it may be tempting to paste a quote from a case containing the applicable standard of review without revisiting the standard again in the remainder of the brief. Do not do this. Probably the most important lesson I learned as an appellate clerk is that the standard of review matters and must often be litigated as fiercely as the substantive issues in the case. A lawyer should identify the standard of review before deciding whether to appeal. Fact-intensive issues may require an appellate court to defer to the trial court’s findings, making the standard of review determinative. Other cases may involve purely legal questions which enjoy a de novo standard of review. And some issues may be mixed questions, trigger multiple standards of review, or involve an appellate issue where the exact standard is unsettled. Spend time determining which standards are applicable and be sure to explain to the court how the standard of review should impact the outcome of your case. Don’t be afraid to be creative. If there is gray area surrounding what standard of review applies to a particular issue, reference the discussion in the recently published case In re Adoption of Baby B., 2012 UT 8, ¶¶ 40-47, 270 P.3d 486, for guidance.
Know the procedural rules.
There are sixty rules of appellate procedure and many other procedural doctrines in the case law that impact how your appeal will be resolved. If these rules are not carefully followed, you run the risk that the appellate court will dispose of your appeal on procedural grounds. For this reason, any lawyer attempting to appeal must become familiar with these rules and follow them. Some common procedural mistakes include:
a. Failing to file a timely notice of appeal. A notice of appeal must be filed within thirty days after judgment is entered. Motions to reconsider and motions filed under Rule 60 will not toll the time for appeal. If you are planning to file one of these motions, file the notice of appeal first to ensure the appeal is timely filed. Consult Rule 4 of the Utah Rules of Appellate Procedure for additional guidance.
b. Failing to appeal from a final judgment. If a lawyer tries to appeal from an order or judgment that is not final, an appellate court will lack jurisdiction over the appeal unless the order has been properly certified under Utah Rule of Civil Procedure 54(b) or the appellate court has granted a petition to pursue an interlocutory appeal.
c. Failing to marshal the evidence. Any time an appellant challenges a judge or jury’s findings of fact, the appellant must marshal all of the evidence that supports the findings or verdict. Proper marshaling requires the appellant to list all of the evidence that supports the factual findings, and then demonstrate that, despite this evidence, the evidence is still insufficient to support the trial court’s findings or the jury’s verdict. To signal to the court that proper marshaling has occurred, it is generally a good idea to include a separate marshaling section in your appellate brief.
d. Inadequate briefing. Under Utah Rule of Appellate Procedure 24, an appellate court may decline to address your arguments if they are inadequately briefed. Arguments should contain Utah law to support them, citations to the record, reference the reasoning of the lower court, and otherwise provide meaningful analysis. The Utah Supreme Court has recently opined that inadequate briefing may also occur when an appellee fails to directly respond to the arguments of the appellant. Broderick v. Apartment Mgmt. Consultants, LLC, 2012 UT 17, ¶¶ 10, 20, 279 P.3d 391.
e. Failing to separately argue the prejudice prong. Every trial court error is not a reversible error. Many cases are affirmed on appeal because a lawyer failed to demonstrate prejudice. For this reason, it is critical not only to demonstrate that an error exists, but also to show that it impacted the outcome. It is generally a good idea to include a separate section in your brief containing an analysis of the prejudice prong.
Attach all of the important documents to your brief and ask someone to read your brief before you file it.
People often forget that the first person to read your brief is often a brand new law school graduate who knows very little about the practice of law. For this reason, it is important to include background information when necessary, thoroughly explain, and be sure that every argument flows logically from start to finish. Anyone who picks up your brief should be able to understand it, even if they know nothing about the case or the area of law. Having others, even non-lawyers, read your brief will help you to identify unclear parts of the narrative and weaknesses in your arguments.
Lawyers should also attach to their briefs any important documents from the record needed to resolve the issues on appeal. An appellate judge may read your brief anywhere and likely will read it only once before argument. Therefore, any document that you think the judge should see before reaching what most likely will be a definitive decision should be attached to the brief. If you file a good brief and include all the necessary attachments, you will waste less time at oral argument clarifying confusion and explaining where to find things in the record. As a result, you will have more time to convince the court that you should prevail.
Finally, every young lawyer filing an appeal should find a good mentor. Consult with someone in your firm who has appellate experience or talk to someone outside of your firm who is familiar with the process. Even seasoned lawyers can benefit from another person’s experience and perspective.