More on Losing

MOSKOVITZ ON APPEALS

My last column explored the pain of losing an appeal, and why masochists like myself knowingly and voluntarily expose ourselves to possibility of such heartache with every case we take.

It's not quite so bad for me, because I usually win. But most lawyers who represent appellants lose. In recent years, the statistics are pretty consistent. In civil cases, both California appellate courts and the 9th Circuit reverse only about 18 percent of the time.

I've had a lot of experience with appeals -- much more than most lawyers who take an occasional appeal. Same with the other members of my appellate team. So we have better idea of what not to take, and how to present the arguments in those cases we do take.

So what are the other lawyers doing wrong? I doubt that they take to trial cases with less than a 20 percent chance of success. Why do they consistently do this on appeal? A lot of reasons -- but one stands out.

They don't appreciate how appellate courts differ from trial courts, and what it takes to persuade them. There's a lot to say about this, and I've done so in a couple of books I've written on appeal.

Nevertheless, based on the hundreds of appellate briefs I've reviewed in the course of my long career, there's one big mistake that I consistently see: most lawyers don't get "the standard of appellate review."

Sure, they will include a short section on "Standard of Review" in their opening briefs -- because they see it in other briefs. But once they get that out of the way, they ignore what they just wrote. They just breeze on their merry journey presenting the facts and arguments as they please -- not realizing that the correct standard of review controls what constitutes "the facts" and how the arguments must be framed.

The lawyer doesn't take the standard of review seriously. Big mistake, because the appellate judges take it very seriously. The standard of review is pretty much their job description -- as in "This is how we look at the trial court judgment we are asked to reverse."

This problem often arises when the appellant's attorney challenges a judgment by arguing that the evidence does not support the verdict. Here, the standard of review on appeal is "the substantial evidence rule." Under this rule, the appellate court peruses all the evidence in the record, looking for evidence that supports (for example) each element of a tort cause of action or a claim for breach of contract. It doesn't take much to be "substantial" -- just a bit more than a "scintilla". (I've never seen a "scintilla" walking down the street, so I can't tell you how big it is. Apparently, it's teeny-weeny. A single witness saying a handful of words during a multi-month trial will do!)

And what do I often see? The appellant's lawyer loading up his brief with his evidence -- and either ignoring the contrary evidence or attacking its credibility. You can't ignore it, because the appellate judges won't ignore it. And attacking credibility ("The opposing witness lied") hardly ever works, because appellate judges defer to trial court determinations on credibility -- because trial courts (both juries and judges) can see and hear the witnesses testify, while appellate judges can't. (A similar situation comes up when I'm appealing a summary judgment against my client. Here, the substantial evidence rule is flipped: the appellate court views the facts in the light most favorable to the party who lost in the trial court. The respondent's brief usually ignores this rule and presents the facts that favors the respondent -- giving me an easy target for my reply brief.)

When I'm on the other side of a brief like this, it's pretty easy to shoot it down. I just assemble the evidence that supports the verdict, present it coherently, and top it off with something like: "These are the 'facts' on appeal, your honors, not the story in appellant's opening brief -- the one that the trial court rejected."

Note that this approach can win an appeal without the need to argue much law. People think that appellate courts spend their time on lofty, arcane issues of law. But much of their work is simply reviewing a record for substantial evidence, then writing a short opinion affirming the trial court.

Because the legal arguments are based on the facts, when the appellant gets the facts wrong, all his legal arguments are usually wrong too. His entire brief is, in a word, worthless. And appeals like this make up a significant fraction of the 80+ percent dustbin of affirmances.

But not mine. I'm such a great advocate that I can overcome the substantial evidence rule, right? Not right. I don't lose these appeals -- because I have enough sense not to take them in the first place. If I don't have a better argument for reversal, I tell the client: "I'd love to take your money, but neither I nor any other appellate lawyer can convince an appellate court to reverse on this record. The facts are against you. The trial court believed the other guy's witnesses, but not yours. Settle, or find some other way to resolve this."

Try this: next time you run into a retired appellate judge, ask her what she thinks your chances are in a pending appeal. The first question out of her mouth, I can almost guarantee, will be: "That depends. What's the standard of review?"