Appellate Strategy Before Judgment

Appellate Strategy Can Begin Before the Appeal

An appellate court ordinarily reviews the record created in the trial court. It generally does not retry the case, hear new witnesses, or provide an opportunity to rebuild the evidentiary record after the fact.

That makes the proceedings below important to the eventual appeal.

By the time judgment is entered, some appellate opportunities may already have been preserved, narrowed, or lost depending upon what occurred in the trial court.

Early appellate analysis can therefore focus on a different question from the one presented after judgment:

If this ruling or issue eventually reaches an appellate court, what will the reviewing court actually have before it?

Summary Judgment and Dispositive Motions

In many civil cases, the summary judgment stage is one of the points at which appellate planning can become particularly important.

Summary judgment can resolve all or a substantial part of a case without trial. The motions, evidence, objections, separate statements, legal arguments, and rulings generated during that process may later form a central part of the appellate record.

Other dispositive motions and significant pretrial rulings can have similar consequences.

At this stage, potential appellate considerations may include:

• Whether important legal arguments have been clearly presented
• Whether relevant evidence is properly before the trial court
• Whether evidentiary objections have been raised and ruled upon
• Whether the trial court's ruling clearly identifies the basis for its decision
• What standard of review may ultimately apply
• Whether an adverse ruling will be immediately reviewable or must await final judgment
• Whether extraordinary writ review should be considered

The purpose of considering appellate strategy at this stage is not to assume that an appeal will occur. It is to recognize that significant trial-court proceedings may later define the issues and record available for appellate review.

Preservation of Issues

An appellate court generally considers issues that were properly presented and preserved in the proceedings below.

A party ordinarily cannot wait until the appeal to raise an argument that should have been presented to the trial court.

Preservation can involve many different aspects of litigation, including:

• Legal arguments
• Evidentiary objections
• Offers of proof
• Requests for particular relief
• Proposed jury instructions
• Objections to jury instructions
• Objections to findings or rulings where required
• Post-trial motions
• Other steps necessary to present an issue for later review

The particular preservation requirements depend upon the issue and procedural setting.

Appellate consultation while the case remains pending can help identify questions that may warrant attention before the trial court loses the opportunity to address them.

Developing an Adequate Record

The appellate record is the foundation of appellate review.

An argument may be legally significant, but the reviewing court generally must be able to evaluate it from materials properly contained in the trial-court record.

That may make it important to consider whether relevant documents, evidence, transcripts, rulings, objections, and other proceedings are being adequately preserved.

The appellate court ordinarily cannot consider evidence simply because a party believes it should have been part of the case. The material generally must have been properly presented in the proceedings below.

This is one reason appellate strategy and trial strategy can overlap.

A trial record developed solely around obtaining the immediate ruling may not always present an issue in the same way that the eventual reviewing court will need to analyze it.

Preparing the Appellate Record in California

Evidentiary Issues

Evidentiary rulings can become important appellate issues, but the existence of an unfavorable ruling does not by itself ensure meaningful appellate review.

Depending upon the circumstances, the record may need to establish:

• What evidence was offered
• What objection was made
• The legal basis for the objection
• How the trial court ruled
• What excluded evidence would have shown
• How the ruling affected the proceedings

These details are often created in real time in the trial court.

Once the case reaches the appellate stage, counsel generally must work with the record that already exists.

Findings, Rulings and the Basis for the Trial Court's Decision

In some matters, the form and clarity of the trial court's ruling can affect later appellate analysis.

Depending upon the type of proceeding, questions may arise concerning findings, a statement of decision, the basis for a discretionary ruling, or whether the record adequately reflects the grounds upon which the court acted.

Where the applicable procedure allows further clarification, objection, or request in the trial court, considering those issues before appellate proceedings begin can sometimes become important.

The relevant procedure varies with the type of case and ruling, so these questions should be evaluated in their specific procedural context.

Post-Trial and Post-Judgment Proceedings

Appellate strategy can also remain important immediately after trial or the entry of a significant ruling.

Post-trial motions may affect:

• Preservation of particular issues
• The trial court's ability to correct an error
• The scope of later appellate review
• The timing of appellate proceedings
• The finality of the judgment
• The appellate record

At the same time, appellate deadlines may begin running independently of whether a party is still considering its options.

Trial-court and appellate deadlines should therefore be evaluated together rather than assuming that one automatically extends the other.

Appeal or Writ?

A significant adverse ruling entered before final judgment may raise a threshold question:

Is the ruling immediately appealable, potentially reviewable by extraordinary writ, or reviewable only after final judgment?

That distinction can substantially affect strategy.

Extraordinary writ review is discretionary and is not simply a substitute for an ordinary appeal. But in appropriate circumstances, waiting until final judgment may not provide an adequate remedy.

Identifying that issue while the underlying trial-court proceedings remain active may be important because writ proceedings can involve short or case-specific timing considerations.

California Writ Petitions

Working With Trial Counsel

Appellate consultation before judgment does not necessarily require replacing existing trial counsel.

In appropriate matters, appellate counsel can consult with the client or trial counsel concerning discrete appellate issues while trial counsel continues handling the underlying litigation.

That consultation may focus on matters such as:

• Preservation
• Standards of review
• Appellate jurisdiction
• Potential writ relief
• Record development
• Significant dispositive rulings
• Post-trial procedure
• Potential appellate issues

The objective is to consider the case from the perspective of a future reviewing court while there may still be an opportunity to address important issues in the trial court.

California Trial-Court Matters

For matters pending in any California superior court, potential appellate issues may ultimately proceed to the Court of Appeal for the district that serves that county.

But the appellate record will largely be created before the matter ever reaches the Court of Appeal.

For that reason, a party facing summary judgment, another significant dispositive motion, an important evidentiary ruling, or another potentially consequential trial-court decision may wish to consider appellate implications before the proceedings below have concluded.

• Appeals From California Superior Courts
• California Appeals Before the Courts of Appeal

When to Consider Appellate Consultation

There is no single stage at which appellate counsel must become involved.

Potentially useful points for appellate consultation may include:

• Before or during summary judgment proceedings
• Before another potentially dispositive motion
• After a significant interlocutory ruling
• When considering extraordinary writ review
• During trial when significant preservation issues arise
• Before or during post-trial motions
• Immediately following judgment
• Before filing a notice of appeal

The appropriate timing depends upon the particular case.

The important point is simply that appellate strategy need not wait until the trial-court litigation is over.