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| Improving the Odds on Appeal
Ambrose Bierce notwithstanding, appeals offer anything but just another roll of the dice. Indeed, many appeals have the same odds of success as a bet that the sum of two rolled dice will be 13. Betting on such an appeal is something no rational client should do; advising the client to pursue one is similarly not likely to be competent legal advice. There is much that can be done to improve the odds on appeal. Sometimes these steps are obvious; other times they are part of the "inner game" of appellate practice. There is a common belief among appellate judges and lawyers who practice regularly before the appellate courts that many -- perhaps most -- appeals would benefit from even some expert guidance. In some instances, maybe nothing more could have been done. In many, however, better decisions about whether to appeal, what to appeal, what to do in the trial court to prepare for an appeal, or how to present the case may well have changed the outcome. One repeated hurdle to bringing appellate expertise to bear on appeals is the persistent myth among trial lawyers that the key ingredient to a successful appeal is "knowing the case." In reality, knowing the appellate process, knowing the court, and learning the record from scratch may be much more important. Indeed, the appellate lawyer who arrives on the scene after the trial and has to learn the record the same way the appellate court will -- from the hard, cold record -- may have an advantage. The trial lawyer may well "know the case" better than the new appellate lawyer, the trial case at least, but it is better to think of the appeal as "a new case" rather than just another round in the old one. Not only does an appeal move to a different courthouse, to be heard by different judges, and to be governed by different rules, but it must be packaged in an entirely new way to be effective in this new forum. Appellate specialists may not know anything about the particular case that is to be appealed, but they do know their way around the appellate courts, and they develop skills and habits uniquely well-suited to this environment. They make a crucial difference in many appeals.
Benefits from a New Approach If an appeal were simply a "do-over," in most cases there would be no one better suited to handle it than the counsel who tried it the first time, and we would not be writing this article. This is far from the case, however. An appeal is a fresh new stage of the litigation, presenting its own unique challenges and opportunities. The most significant of these are outlined below.
Standard of Review. Appellate judges and appellate lawyers share a common insight into the appellate process: every issue is viewed through a precisely defined lens -- the standard of review. The standard of review is probably the most outcome-determinative aspect of many appeals. Too often it dictates an unfavorable outcome. While the trial court focuses directly on the parties and the merits of their dispute, an appellate court's immediate focus is the trial court. The appellate court views the trial court's decisions and asks the question common to all appeals: Under the applicable standard of review, did the trial court commit an error that warrants reversal? To argue effectively on appeal, counsel must fully understand the standard of review. Standard of review is also not at all part of the trial lawyer's lexicon; it simply doesn't have a role in the trial court proceedings. Because not all errors are created equal, there are a variety of standards of review, each appropriate for a different set of alleged errors. (See Figure 1 for a summary of the most common standards.) They differ in how much deference the trial court will be given. Alternatively, they may be viewed as hurdles of varying height that the appellant must clear to prevail on appeal. Many trial matters, such as the admission or exclusion of evidence or the evaluation of an expert's competency to testify, are left to the trial court's discretion. Therefore, when the appellate courts review these matters, they use an "abuse of discretion" standard and will reverse the decision only if the appellant establishes that the trial court abused its discretion. The trial court's discretion on these matters is often viewed as "broad," further limiting the breadth of review. An appellant's attorney who fails to appreciate the standard of review and urges only this type of error could miss the boat entirely. Deference to trial judges stems not from any belief in their infallibility, but it does acknowledge a superior ability to determine questions of fact. Deference also recognizes the need for finality. As put by the Supreme Court, "the trial on the merits should be ... the main event'... rather than a ... tryout on the road.'"1 As to most trial rulings, you get only one bite at the apple. An intrepid appellant who does challenge a decision that is within the trial court's discretion must keep in mind the standard of review when devising a plan of attack. Arguments critical of the trial court's discretionary decision will be to no avail unless they demonstrate that the trial court abused its discretion. It is not uncommon for the Court of Appeals to express its general agreement with an appellant's critique, but to affirm the decision anyway, explaining that the decision was not an abuse of discretion. The Minnesota Supreme Court has observed, for example, "This court on review must affirm the trial court's division of property if it had an acceptable basis in fact and principle even though this court may have taken a different approach."2 Another standard of review that can cause appellants to miss the mark is the "clearly erroneous" standard. This standard applies to factual findings, because the fact-finder observed the introduction of evidence first hand, and had the best opportunity to judge the witnesses' credibility.3 The appellate court will reverse factual findings only if it finds that there was no reasonable evidence in the record supporting them.4 This means that to obtain reversal, the appellant must do more than simply point to the evidence supporting his or her position, voluminous though that evidence may be. This approach may have been effective when the audience was the fact-finder, but the standard of review makes it insufficient on appeal. In addition to pointing out supporting evidence, an appellant challenging a factual finding must demonstrate an absence of evidence supporting the trial court's finding. When forced to evaluate this supporting evidence, without considering credibility issues, many appellants realize that a factual finding is nearly certain to survive a challenge on appeal, even though it may not comport with their view of the truth. Only in cases involving a de novo standard of review is the appellate court answering essentially the same question posed to the trial court. When reviewing an issue de novo, the appellate court will consider the issue for itself, giving no deference to the trial court's decision.5 This standard is generally reserved for pure questions of law, such as whether the trial court applied the correct legal standard, or whether the statute that the plaintiff has invoked applies to the plaintiff's situation. An appellant challenging a purely legal issue on appeal must demonstrate that his or her interpretation of the law is correct, just as the appellant had to do before the trial court. As compared to other standards of review, the de novo standard has the least impact on the case on appeal and is the most favorable to appellants. As discussed below, however, even de novo cases change in many important ways on appeal. Focus on Selected Issues. Most appellate judges cannot think of a case where a party won by adding one more issue to an already long list of issues. Good appellate lawyers have the same view, learned either from listening to the appellate judges or from hard experience. Less really is more in the appellate context. When a case is appealed, the case changes in at least two important ways. First, while the district court may have decided a large number of issues by the time a case is appealed, the most effective appeals raise only one or two issues. Although an appellant may find fault with a large number of decisions, "kitchen sink" appeals lack credibility. (As an alternative to plumbing analogies, guns provide another oft-used analogy; appeals are much more likely to succeed if the approach is like that of a rifle, rather than a shotgun.) The shotgun approach may signal to the court that the appellant is pervasively unhappy with the case's outcome, and is raising every possible issue in the hopes that something will stick. But raising too many issues causes vital resources -- including pages in a brief, minutes in oral argument, the court's time and attention, and credibility of the appeal -- to be thinly spread or squandered entirely. While the discussion narrows in terms of the number of issues it includes, the discussion of the issues themselves can become considerably broader. This is particularly true when the issues are pure questions of law. Although the appellate court and district court are answering essentially the same question -- i.e., what is the law? -- that question means something different at each level. Whereas the district court is primarily interested in following binding precedent, and hopes to find clear direction in the decisions of Minnesota's appellate courts, the appellate courts themselves have more leeway to clarify and interpret precedent, or to fill gaps in the law by making new law entirely. They are therefore more interested in persuasive precedent and secondary authority, and in theoretical discussion of public policy. Because their decisions set precedent for the lower courts, they are interested in the impact of a decision not only on the parties, but also on the law on a statewide level. What sort of precedent will the case set? How will the decision fit in with prior decisions? These are topics that probably were not broached before the district court. An appellant who reduces the number of issues makes room to engage in this broader discussion of the issues that remain. Keeping an Eye on the Prize. Appellate practitioners know that the appellate court wants to know precisely what relief the parties want -- affirmance, reversal, remand, etc. They also know that it is possible to "win" nothing by winning an appeal. If you don't want a new trial, pursuing an appellate issue where that is the only logical remedy makes no sense. Not all appellate court reversals result in the entry of judgment for the appellant. If the case is remanded to the district court for further proceedings, does the outcome change? It may or may not; the remand may just add more expense. When evaluating the merits of an appeal and in selecting the issues to be argued, an appellant must consider the possibility of this result, and consider whether there is any way to avoid it. From an appellant's point of view, a reversal with remand may not really be preferable to an affirmance, and an appellant who has not considered this possibility -- or whose lawyer has failed to advise of it -- can be in for a rude surprise. Amici Curiae. Amici curiae, or "friends of the court," are nonparty stakeholders who, upon motion, are granted permission to file briefs supplementing the parties' positions on appeal. They are only occasionally part of trial court proceedings, but may play an important part in appeals. Particularly in cases where new legal issues are presented, they may be affirmatively helpful to the courts. They may also be helpful to a party.6 Because the appellate courts are concerned about the precedent set by their decisions, they welcome information about the impact their decisions will have on parties beyond those immediately involved in the case. Amici curiae have the potential to have a significant and positive impact on an appeal, and should always be considered. The Value of Appellate Experience Familiarity with the Process. Of course, appellate specialists are familiar with all of the unique trappings of an appeal, such as the complex procedural rules and case law about the preservation of error and appellate jurisdiction. It is difficult to assess how much this familiarity matters, but a deep understanding of the procedural law can be a great benefit to either side of an appeal, assisting the appellant to perfect the appeal and preserve all issues, and assisting the respondent to use the rules defensively, perhaps by getting an appeal dismissed. Even an apparently simple document like the notice of appeal, which is usually just one page long, can trip up an appellant. The authors have twice moved successfully to dismiss appeals based on the way the appellant was identified on the notice of appeal -- a detail that an attorney inexperienced at the Court of Appeals would likely overlook. Research published recently in the Law and Society Review attempts to evaluate how much experience matters.7 This research suggests that attorneys with experience with a particular forum have a higher rate of success there. The researchers analyzed the relationship between attorney experience, case outcomes, and judicial voting in product liability decisions of the United States Courts of Appeals, and concluded overall that counsel expertise and litigant success were "at times" related.8 Most significantly, the researchers found that prior experience with the U.S. Court of Appeals was a more significant indicator of success than was experience with the substantive area of law involved in the case. In fact, appellants who hired attorneys with no previous experience before the circuit court had markedly lower success rates.9 This is just one study of a limited set of cases, but it does support the common sense conclusion that experience matters. There is another, darker side of familiarity. The trial lawyer may know too much. It is the unusual appeal where the trial lawyer doesn't insist that he or she took some action in the trial court -- made some request, objected to some question -- or that something important happened despite the fact that a painstaking review of the record does not offer any hint of it. We have long since recognized that we are not being lied to or misled -- the action in question probably did take place. It just didn't happen "on the record," and for appellate purposes, if it didn't happen on the record, it didn't happen. There may be ways to deal with such a problem, but having to concede at oral argument that a fully briefed issue fails because the record doesn't support it is not a good way to deal with it. New appellate counsel are not burdened with these historical misperceptions A Fresh Look. Some of the value added by an appellate practitioner comes from what he or she does not know. At the close of the district court proceedings, trial counsel's head is likely to be full of case-related stuff that is not in the record and will not be relevant on appeal: deposition testimony not elicited at trial, off-the-record discussions held in chambers, opposing counsel's maddening discovery tactics, and countless other facts and issues. By starting with a clean slate, and relying on the same record the appellate court will rely on, an appellate practitioner can best evaluate the issues and select the strongest for appeal. And as we have already pointed out, this narrow focus is essential to an effective appeal. Take factual disputes, for example. After trial counsel has gone through discovery and a trial, hearing reams of testimony and examining countless documents, he or she is likely to have developed a strongly held view of the truth. This view may affect how trial counsel perceives testimony at trial and evaluates the evidence on the other side. When the judge's factual findings do not comport with the attorney's understanding of the truth, it may be easier for the trial counsel to deem that finding "clearly erroneous" and worthy of appeal. An appellate specialist can examine the record and weigh the evidence on both sides with the same dispassion the appellate court will use, and is therefore more likely to recognize when challenging a factual finding would not be a worthwhile exercise. And let's face it: good trial lawyers hate to lose. The very skills that make them perseverant advocates can unfortunately translate into a personal enthusiasm for appeal, or for appeal of a particular issue, that rational analysis would not support. Appellate lawyers may like to win just as much, but at least appellate lawyers new to the case do not start with the same psychological investment in the process.
An Appellate Approach and Assessment. Most appellate lawyers approach cases in a similar manner. First, they try to understand what happened in the trial court and then make, usually with the assistance of trial counsel, a list of the various errors conducted at trial. They sort these issues into "appellate issues" and they examine them through the lens of the standard of review. During this process, the list of issues on appeal is forming and, equally important, the appellate lawyer is gaining an insight into the case that will allow her to give informed advice about the prospects on appeal. In all but the most important cases, there should be some consideration of not appealing at all. The appellate lawyer's advice on what is likely to occur on appeal may be the most valuable contribution to the appeal.
An Emphasis on Different Skills. Appellate lawyers are familiar with the appellate process and they approach their cases pretty much the way the appellate judges do. Mastery of the appellate process may either allow you to avoid potholes or may present opportunities. Unfamiliarity presents potholes you might not otherwise encounter. Appellate lawyers tend to be good writers, and there is no appeal where a good, clear, focused brief is not important. It may not carry the day, but it is necessary to maximize the odds of success. The ability to write clearly and to write an appeal where the issues have been reduced to only the most promising is a valuable skill and yields a significant advantage. Oral argument on appeal is a special occasion. It is marked by short, rigidly enforced time limits and frequent questioning from the bench. Few other lecterns are equipped with red lights to tell the advocate when she must sit down! Argument presents an unusual opportunity for advocacy, however. Appellate argument allows the advocate a chance to help the judge find the right answer, to discuss the ramifications of various alternative decisions, and to dispel any misconceptions that may have crept into the judicial view of the case. Mistakes we often see trial lawyers -- even gifted trial lawyers -- make at the appellate lectern include:
Appellate lawyers set out to make a few very specific points to the court during the allotted time and to answer every question raised by the court -- easy goals, but not easily accomplished without years of experience. Working with Appellate Counsel The question of how best to harness an appellate specialist's expertise depends on the nature of the case. There is a spectrum of ways to work with appellate counsel, ranging from not consulting a specialist at all to handing over the file and ceasing all involvement. Most cases are handled most effectively somewhere in between these two extremes -- a collaboration of trial and appellate counsel. How that team functions in any given case depends on the unique blend of issues, resources, personalities, and stakes presented by that case. For the purposes of discussion, we have identified five different points along the spectrum. 1. "Do-it-Yourself." One option is to continue with the trial team, and not to consult with an appellate practitioner at all. This approach is rarely in the client's best interest. The rare exceptions include cases where the trial counsel is also an experienced appellate practitioner, or where a respondent faces an appeal that is likely to fail of its own accord. 2. Continue in the Leading Role. In many cases, the trial attorney may want to draft the brief and appear before the court for oral argument. In these cases, there are still a number of ways that an appellate specialist could contribute to the case. For example, an appellate specialist could help an appellant find the way through the maze of procedural rules. On the other side, an appellate specialist could review an appeal and help find procedural defenses. An appellate specialist could provide useful analysis in the decision about whether to appeal, and what issues to raise. Finally, of course, an appellate specialist could review a draft of the brief and listen to a mock oral argument. 3. Continue in a Supporting Role. If trial counsel turns over the reins to an appellate specialist, and is not responsible for writing the brief or arguing the case, he or she still has a lot to contribute. First, the trial counsel can introduce appellate counsel to the issues and generate a list of all of the possible potential errors to raise on appeal, as well as prepare a roadmap showing where certain issues may appear in the record. In this model, trial counsel should stay in touch throughout the brief-writing process to answer questions and fill in background that is off the record. (It is not unheard of for an appellate court to ask for information that is not on the record.) Trial counsel should also review a draft of the brief, paying particular attention to how the trial procedure is represented and the accuracy of the facts. 4. Form a Team from the Beginning. In some cases, trial counsel may choose to put an appellate practitioner on the case team from the very beginning. This happens in law firms that have both trial and appellate practitioners 5. A Clean Break. At the other end of the spectrum is the clean break, in which the trial attorney hands the file over and does not expect to have any ongoing involvement in the appeal. This may happen because the client relationship has deteriorated, or because the trial counsel's conduct is at issue on appeal. It is almost always better for trial counsel to remain involved. Conclusion No one likes to lose, so the automatic right to an appeal offers vanquished litigants (and their attorneys) an opportunity that can be difficult to resist. But when a case proceeds to appeal, the landscape changes and the case needs to change along with it. Trial counsel's familiarity with the case, and the comfort that familiarity engenders, may become a liability rather than an asset. An appellate specialist can help potential appellants understand their chances of success, and ensure that their case is presented most effectively if they do choose to invest in another throw of the dice.
Notes 2 See Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984). 3 Minn. R. Civ. P. 52.01. 4 Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). 5 Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) ("A reviewing court is not bound by and need not give deference to a district court's decision on a purely legal issue."). 6 See generally David F. Herr & Michael C. McCarthy, "Amici Curiae: Not Just Friends of the Court Anymore," 9 Practical. Litigator, May 1998, at 11. 7 Susan Brodie Haire et al., "Attorney Expertise, Litigant Success, and Judicial Decisionmaking in the U.S. Courts of Appeals," 33 Law & Society Rev. 667, 667 (1999). 8 Id. at 667. 9 Id. at Table 3.
DAVID F. HERR is a partner with Maslon Edelman Borman & Brand, LLP, Minneapolis. He is coauthor of Minnesota Practice: Civil Rules Annotated CYNTHIA F. GILBERTSON is a writer and lawyer living in Golden Valley. Until March 2002, she was an appellate lawyer with Maslon Edelman Borman & Brand, LLP, Minneapolis. |
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