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Frank Hallam Day
APPEALS AND WRITS  |  LAW-AND-MOTION  |  RESEARCH AND ANALYSIS

        I’m a lawyer. I deal in words. This website isn’t flashy, but neither are judges. Judges decide cases on the substance of your arguments (words), not how cleverly you present them. This was true when I started practicing in 1983, and it hasn’t changed over the 40 years since.
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        If a trial is hand-to-hand combat, an appeal is a chess match, which demands fundamentally different skills. Convincing an appellate court that the outcome at trial was wrong or right requires an attorney to:

  • boil down what may be a sprawling mass of testimonial and documentary evidence into a concise and comprehensible record;

  • know which issues are most likely to get the court’s attention and how to deal with them;

  • distill the record and the law into a finely crafted brief; and

  • sum it all up in a single time-constrained argument before a panel of bright, inquisitive, skeptical, and occasionally antagonistic judges.

Even if you decide to handle an appeal yourself, an appellate attorney can help you make sure your brief is substantively and procedurally impeccable, and can also prepare you for the gauntlet of oral argument. California clients have been making appellate-malpractice claims against their attorneys for at least 145 years (Drais v. Hogan (1875) 50 Cal. 121), so getting everything right isn’t something you want to leave to chance.

Experienced appellate counsel can also provide invaluable assistance before and during trial. Because around 90 percent of civil appeals in the California Courts of Appeal and in the Ninth Circuit result in affirmance, the best way to win on appeal is to win at trial. Appellate counsel can help shape the trial court record by advising on preserving substantive and procedural arguments, helping craft jury instructions, and assisting with dispositive, evidentiary, and post-trial motions.

Whether you want to protect a favorable verdict or overturn an adverse one, winning on appeal requires a fresh reexamination of the case, with a focus on the unique subtleties of appellate practice and procedure, along with the experience to provide level-headed – and hard-headed – advice about the likelihood, and cost, of success. Over years of practice, an appellate attorney develops skills uniquely suited to that task. Here are six of them:

         1.  The ability to bring a new perspective and innovative thinking to issues that were decided at trial.

         2.  The ability to formulate, through rigorous analysis of the record and applicable law, issues that will interest and persuade appellate judges.

         3.  The perseverance to do thorough research focusing not only on the facts of the case on appeal, but also on how that case fits into the larger body of law it is part of.

         4.  Advocacy attuned to the requirements of the appellate forum.

         5.    An abiding familiarity with the intricacies of appellate procedure – rules were made to be followed.

         6.  Assisting trial counsel in anticipation of an appeal.

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1.  The ability to bring a new perspective and innovative thinking to issues that were decided at trial

  • Handling a case in the appellate court is not the same as handling a case in the trial court: Judge Ruggero Aldisert, of the Third U.S. Circuit Court of Appeals, said in his book Winning on Appeal, “[A]ppellate advocacy is specialized work” that “draws upon talents and skills which are far different from those utilized in other facets of practicing law.” (Aldisert, Winning on Appeal (1999) § 1:1.) The California Court of Appeal has echoed that point: “Appellate work is most assuredly not the recycling of trial level points and authorities. ... The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product.” (Marriage of Shaban (2001) 88 Cal.App.4th 398, 408, 410, 105 Cal.Rptr.2d 863.)

  • “[T]rial attorneys who prosecute their own appeals ... may have ‘tunnel vision.’ Having “tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450, 77 Cal.Rptr.2d 463.) 

  • “After 30 years on the appellate bench, my strong view is: Never use trial counsel for an appeal. Appellate courts don’t lend themselves to jury arguments. And trial counsel are often so close to the case that they slip into that mode, even if they know better. It doesn’t help. Appellate judges want to engage sophisticated, knowledgeable counsel who can help them write better opinions.” (Arthur Gilbert, Presiding Justice, California Court of Appeal (2d App. Dist., Div. 6), quoted in Mittelstaedt & Murray, “Who Should Do the Oral Argument?” 38 Litigation no. 4 (Summer / Fall 2012), p. 4.)


2.  The ability to formulate, through rigorous analysis of the record and applicable law, issues that will interest and persuade appellate judges

  • An appeal is not a second trial: “Fundamentally, unlike trial, the purpose of an appeal is not to determine the case on its merits, but to review for trial court error. [Citation.]” (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791, 59 Cal.Rptr.2d 332.)

  • The appellate court will not reweigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or the reasonable inferences that may be drawn from the evidence. Thus, while trial attorneys typically seek to persuade a jury or a single judge that disputed facts weigh in their client’s favor, appellate attorneys must persuade panels of judges that the trial judge didn’t follow or properly apply the law, and that those errors prejudicially affected the outcome of the trial.


3.  The perseverance to do thorough research focusing not only on the facts of the case on appeal, but also on how that case fits into the larger body of law it is part of

  • Finding a case and understanding its significance are two different things: “Legal research is not merely a search for information; it is primarily a struggle for understanding.” (Michael J. Lynch, An Impossible Task but Everybody Has to Do It – Teaching Legal  Research in Law Schools, 89 Law Libr. J. 415, 415 (1997).) Finding relevant cases “is as easy as playing Trivial Pursuit and maybe even more fun,” but “gleaning the most relevant and salient authorities” from the field of search results is “what separates the grown-up [attorneys] from the boys and girls.” (Kenneth Lasson, Scholarship Amok:  Excesses in the Pursuit of Truth and Tenure, 103 Harv. L. Rev. 926, 937 (1990).) As the French philosopher and law professor Jacques Ellul put it in a different context, the problem is not an excess of information, but an excess of insignificance.

  •  “One of the inherent vices of computer legal research ... is that we tend to lose broader perspectives about the history, shape, and direction of legal doctrine. And yet, outcomes are often determined more by those larger concepts than by particular citations of particular authorities.” (Michael E. Tigar, A Review of “Appellate  Courts: Structures, Functions, Processes, and Personnel,” 2 Fed. Cts. L. Rev. 133, 134 (2007).) Thus, “appellate counsel must necessarily be more acutely aware of how a given case fits within the overall  framework of a given area of law, so as to be able to anticipate  whether any resulting opinion will be published, and what effect counsel’s position will have on the common law as it is continuously developed.” (Marriage of Shaban, supra, 88 Cal.App.4th at p. 409.)


4.  Advocacy attuned to the requirements of the appellate forum

  • “There is no such thing as good writing. There is only good rewriting.” (George W. Pierce, The Legal Profession, 30 The Torch 5, 8 (1957) (quoting Justice Brandeis).) As Irving Younger said, legal writing should be “modest and quiet, confident  that its merit lies partly in the art by which the author has concealed his art,” “like a triple-dry martini – colorless but  powerful.” (Younger, The Art of Learned Hand, ABA Journal (Mar. 1, 1987) p. 96.)

  • According to the most recent Judicial Business of the United States Courts, for the year ending September 30, 2019, the Ninth Circuit decided 79 percent of its cases solely on the briefs. (Table B-10.) And although oral argument is a matter of right in California state appellate courts, by the time a case is argued the appellate justices’ perceptions of the dispute have already been shaped by the briefs. 

  • Winning on appeal requires a sophisticated and nuanced approach to brief-writing that integrates persuasive argument with legal authority and policy reasoning – not just getting the precedents right, but also appreciating subtle distinctions between precedents, recognizing the trend of case-law over time, and exploring policy considerations that shape that trend. It also requires the ability to take complex fact-patterns and make them comprehensible to someone entirely unfamiliar with the case, but in a way that doesn’t pander or patronize.

  • In those cases that do go to oral argument, the attorney must know the trial record, the briefs, and relevant authorities not cited in the briefs, and be able to field questions from a panel of smart, skeptical judges – who know the trial record, the briefs, and relevant authorities not cited in the briefs – without losing the focus of the argument.


5.  An abiding familiarity with the intricacies of appellate procedure – rules were made to be followed

  • Appellate procedure is a foreign country: From the  appealability of a judgment or order to the formatting requirements for briefs, making sure your case gets decided on the merits can involve Byzantine rules and procedures. If it seems like a different language from the rules of trial court practice, that’s because it is.


6.  Assisting trial counsel in anticipation of an appeal

  • The best way to win on appeal is to win at trial:  The “presumption of correctness,” which applies in both California and federal appellate courts, gives the party who won at trial a built-in advantage on appeal. This is reflected in the statistics. According to the Judicial Council of California’s 2023 Court Statistics Report, California appellate courts either dismissed or affirmed on the merits 84 percent of civil appeals in fiscal year 2022 (Figure 25.) The same report also shows that for civil appeals the median time from filing the notice of appeal to the appellate court’s opinion was 569 days. (Figure 33.) According to the 2022 Judicial Business of the United States Courts, the Ninth Circuit only reversed 20.4 percent of non-governmental civil appeals in the year ending September 30, 2022. (Table B-5.) The same report also shows that for civil appeals the median time from filing the notice of appeal to a decision by the Ninth Circuit was 12.6 months. (Table B-4A.) Given those numbers, the best way to prepare for an appeal is to avoid one, by making sure the record at trial is bullet-proof. Getting appellate counsel on board early can help you make sure that happens.


    WILL TOMLINSON, ATTORNEY
     Santa Barbara, California


    Critical matters.  Critical thinking.