Wednesday, November 23, 2022

Best way to win an appeal

The Recorder has Justice Beds' latest column, The Instant Reply Booth, about pinatas and standards of review:

  • there’s apparently a lot of disgruntlement going around. An attorney today began his argument by saying, “I know appellate courts try very hard to affirm the trial courts.”
  • That’s not entirely true. The system tries hard to affirm the trial courts. The appellate system has a heavy bias in favor of affirmance.
  • What I mean by this is that there are only three standards of review in the California appellate courts: abuse of discretion, substantial evidence, and de novo.
  • The first of these, abuse of discretion, requires that you convince us the trial judge inexplicably began knitting with only one needle when he/she reached this issue.
  • To rule in appellant’s favor on an abuse of discretion issue, we have to be convinced that no reasonable judge could have come to this conclusion. Honest.
  • The second standard of review is substantial evidence. Under this standard, appellant has to convince us there is NO substantial evidence in support of the judge’s ruling. None. Nada. Zilch, zip, zero. NO substantial evidence.
  • The third standard is de novo review. This is the standard of review we get to apply least often. It’s the most favorable one for appellant, because all counsel has to do is convince us he/she/it is right.
  • it’s not that “appellate courts try very hard to affirm the trial courts,” it’s that the system set up by California law tries very hard to affirm the trial courts. We need to end these disputes somewhere, and the system is set up to assure that most of the time that “somewhere” is the trial court.
  • The old adage is true: The best way to win an appeal is to win in the trial court.