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Considering an Appeal? Rules of Thumb for Appeals

livinglies.me | January 29, 2020

Most pro se litigants and perhaps even a majority of lawyers do not understand appellate procedure, since they regard it as an opportunity for a new judge or panel to consider the evidence and come to a conclusion different than the trial court. Such appeals always produce the same result — judgment affirmed.

Worse, some lay people are under the mistaken impression that they can submit new evidence to the appellate court.

And then there are people who don't understand that the deadline for filing a notice of appeal or a brief is not subject to any automatic extension and may well be the reason that the appellate court turns down the brief or even dismisses the appeal without ever hearing the merits.

Rules of Thumb for Appeals

First no appeal will even be considered unless the appeal is directed to an error in procedure committed by the trial judge. The fact that the error in procedure was based upon a misapprehension of fact or law should be downplayed because unless there was absolutely no basis for the ruling by the trial court it must be affirmed. You only get one trial.
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Second the error must be persuasively shown to have produced a result that would have been different had the error not occurred --- not that it SHOULD have been different but that it would have been different.
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Third the presentation must be provocative enough for a clerk — who is the first and sometimes the only one to read the brief — to put the brief in a pile for review. People underestimate the influence of clerks who often determine whether an appeal is taken seriously.
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Fourth you must be aggressive and relentlessly focussed on very narrow procedural issues and highlight discrepancies between what the trial court did in this instance and what the courts have ruled in other very similar instances or what the legislature has codified into law in a specific statute. The only exception is the rare case where you can argue that the legal doctrine should be changed because circumstances have changed.
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Fifth you can’t bring up issues that were not raised in the trial court or try to introduce new evidence into the record. The only exception to this is that if you have a persuasive argument that the trial court lacked jurisdiction over the parties or the subject matter, you can raise that at any time even on appeal.
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Sixth don’t talk about bias unless you have established in the court record that the judge has a specific interest that you can identify which did actually affect the outcome. Raising bias without a very specific and strong foundation can be dangerous: it can undermine the rest of your brief.
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Seventh, don’t argue factual logic. This also demonstrates the lack of appellate experience and undermines your credibility. It doesn’t matter if the trial judge’s decision was illogical. What matters is whether the trial judge had any factual and legal basis for arriving at the decision from which you are appealing. You can argue logic within the legal argument about which law should be applied and how, but don’t attack the facts unless you are 100% certain that there is no factual basis or facially valid document that could support the judge’s decision.
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Eighth, recognize that 1 in 6 appeals succeed and most of those are criminal cases. My opinion is that in foreclosure cases the chances of appellate success are less than 5%. In most cases where there is a success there is an appellate lawyer filing the brief and arguing the appeal.

 

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