The limits of the appellate process and effective storytelling

The appellate process has many limitations that can deter a disappointed litigant's pursuit of relief on appeal. For example:

1. An appealed judgment is presumed correct (e.g., Jameson v. Desta, 5 Cal. 5th 594, 608-09 (2018)), and no judgment can be overturned except upon a showing of prejudicial error (e.g., F.P. v. Monier, 3 Cal. 5th 1099, 1107-08 (2017)).

2. While questions of law are reviewed de novo, findings of fact will be not be set aside if there is any substantial evidence, whether contradicted or not, to support them. See, e.g., Schmidt v. Superior Court, 44 Cal. App. 5th 570, 581-82 (2020); Thompson v. Asimos, 6 Cal. App. 5th 970, 981 (2016).

3. Deferential standards circumscribe review of findings and rulings by a trial judge. E.g., Denham v Superior Court, 2 Cal. 3d 557, 566 (1970) ("a reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice"); Marriage of Sahafzadeh-Taeb & Taeb, 39 Cal. App. 5th 124, 144 (2019) (" 'in the absence of contrary findings, "we must presume in favor of the [trial court's] judgment every finding of fact necessary to support it [that is] warranted by the evidence" ' "); Young v. California Fish and Game Commission, 24 Cal. App. 5th 1178, 1192-93 (2018) (appellate court will not review the reasons for a trial court's decision -- the decision will be upheld if correct on any theory even if the trial court's reasoning was erroneous); Winograd v. American Broadcasting Co., 68 Cal. App. 4th 624, 631 (1998) ("A ruling by a trial court is presumed correct, and ambiguities are resolved in favor of affirmance").

4. The overall purpose of the appellate courts limits the scope of review. The intermediate Court of Appeal reviews lower court proceedings to correct error, not to retry the case. See, e.g., Eisenberg & Hepler, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 1:12 ("Fundamentally, unlike trial, the purpose of an appeal is not to determine the case on its merits, but to review for trial court error"). The Supreme Court can choose the cases it wants to decide and limits its role to policy making and conflict resolution. Id. ¶ 13:1 ("[T]he supreme court's purpose is to decide important legal questions and maintain statewide harmony and uniformity of decision. The supreme court's focus is not on correction of error by the court of appeal in a specific case." (Emphasis omitted).).

Given all these limitations, it should not be surprising that most recently California intermediate appellate courts affirmed the lower court result in 79% of civil appeals, and the California Supreme Court granted discretionary review in only 2% of civil appeals. Judicial Council of Cal., 2020 Court Statistics Report: Statewide Caseload Trends, 2009-10 Through 2018-19 (2020) pp. 16, 34.

But are the prospects for success on appeal always so bleak? Not necessarily. The particular facts of a case can help push the needle toward granting relief on appeal -- if an appellate court is persuaded that the result in a particular case is unfair, it will be more likely to intervene. See Alarid v. Vanier, 50 Cal. 2d 617, 625 (1958) ("[n]o precise formula can be drawn for deciding whether there has been a miscarriage of justice").

In Shamblin v Brattain, 44 Cal. 3d 474 (1988), for example, the California Supreme Court, though not an error-correcting court, intervened solely to correct a mistake by the Court of Appeal that perpetuated what the facts disclosed to be an unjust result. The Court of Appeal had reversed a judgment in defendant Brattain's favor after Brattain's counsel failed to respond to the plaintiffs' appeal and the appellate court clerk erroneously failed to notify Brattain of the default. Id. at 476-77. The case returned to the trial court, where Brattain's attorney again failed to respond and a default judgment was entered. Id. at 477. Brattain hired a new lawyer and moved to set aside the judgment. Id. at 477-78. The trial court granted Brattain's motion but the Court of Appeal reversed. Id. at 478.

The Supreme Court granted review but identified no conflict among the courts or important question of law. Shamblin, 44 Cal. 3d at 476. Instead, the court recited only settled principles of law and reversed the Court of Appeal's judgment solely because the Court of Appeal mistakenly "substituted its own view of the facts." Ibid; see also Tolan v. Cotton, 572 U.S. 650, 651, 659 (2014) (intervening solely to correct error in lower court's review of summary judgment).

Because the facts can move an appellate court to achieve fairness, the ability to present a compelling story on appeal is crucial. In my firm's appellate practice, we often spend more time crafting the statement of facts in a brief than we spend on the legal argument. In our view, an appellate brief should tell a story so compelling that the legal argument merely confirms what the reader has already concluded from the facts.

A writing seminar is beyond the scope of this article, but a good statement of facts will:

1. Give a chronological narrative of what happened, rather than a witness-by-witness summary of the testimony at trial.

2. Use short, clear declarative sentences.

3. Adhere to the applicable standard of review (e.g., reviewing the evidence in the light most favorable to the prevailing party).

4. Provide complete and accurate citations to the record on appeal.

5. Let the facts speak for themselves, without argument, hyperbole, or typographical devices such as boldface or italics.

6. Provide headings that introduce the reader to each distinct part of the narrative.

There are many limitations to the appellate process. But there is always room for honest and effective storytelling to persuade an appellate court to achieve a fair and just result. 