When & Why You Should Pursue an Appeal

- David H. Schwartz

If you think of litigation as a form of war (without bloodshed and property destruction), then like war, it is composed of feints, skirmishes, full-fledged battles, advances, and retreats. As in war, there are likely to be decisive battles, but also as in war, winning battles does not necessarily mean winning the war. 

The appellate courts represent one battlefield in the litigation war. The appellate courts are capable of turning trial court defeat into victory, but also turning trial court victory into defeat. Seeking relief in the appellate court, either through a direct appeal or an extraordinary writ, should be viewed as a potential tool to win the war, not merely as a “last hurrah” when the war has already been lost.

What is an Appellate court?

A court of appeals or appellate court, very simply put, is a court that has the power to reverse an order or a judgment of a trial court. It offers an avenue for obtaining relief from trial court error. Most typically this happens only when the trial court has concluded its proceedings on the case, but there are opportunities to use the appellate courts to correct serious trial court error before the trial court issues a final judgment.

How does the appellate court work?

The most important difference between the trial court and the appellate court is that the appellate court must decide cases based solely on what was put in the record in the trial court. Appellate courts do not accept new evidence that wasn’t presented to the trial court, and will not consider evidence bearing on the case unless there was at least a record in the trial court of an attempt to present that evidence below. Legal issues not presented to the trial court often may not be raised for the first time in the appellate court.

Appellate courts are best suited to correct legal errors committed by the trial court. Trial courts take and evaluate the weight and credibility of evidence. Appellate courts seldom will re-evaluate the evidence presented in the trial court – the law requires the appellate court in most instances to defer to the evaluation of the evidence made by the trial court, except where it is clear that the trial court has applied the wrong law to the evidence. 

Where the trial court has applied the wrong law, and the appellate court believes that error had a significant effect on the outcome of the case, the appellate court may re-evaluate the evidence itself, or more often, instruct the trial court to re-evaluate the evidence using the correct legal rule.

When and why appeal

If the trial court has made a major error of law, recourse to the appellate courts should be reviewed with an eye to cost and effectiveness. If the trial court has not yet issued a final judgment and has other decisions to make, seeking interlocutory appellate review (during pendency of the action in the trial court) may offer a means to correct the trial court’s legal thinking and reorient the trial court toward making a decision in your favor. 

If the trial court has issued a final judgment, appealing from that judgment shouldn’t be made in a knee-jerk fashion. Appeal may largely be a futile course and a waste of resources unless there is a clearly definable legal error made by the trial court that affected the outcome.

Keeping Appellate Relief in Mind While Litigating

The appellate court will only review what is in the trial court record, so it is important, while litigating in the trial court, to keep in mind what the appellate record will look like to an appellate court. This is true whether you are winning or losing in the trial court. Many lawyers ignore such considerations, focusing entirely on winning in the trial court while leaving the battle in the appellate court to the “appellate lawyer.” 

Many judges become irritated--or worse--when they see a lawyer “making a record for appeal” on an issue the trial judge thinks is frivolous. Effective representation requires a trial court lawyer to remain cognizant of opportunities, or potential threats, of possible appellate court reversal, while forcefully pursuing a successful trial court result.

San Francisco trial and civil appeal lawyer David H. Schwartz has successfully obtained reversal of key trial court decisions in the appellate courts, including successfully filing and winning published interlocutory rulings from appellate courts that have forced the trial court to change its legal rulings resulting in successful resolution in the trial court. To learn more, contact the Law Offices of David H. Schwartz through our online form or call.

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David H. Schwartz

San Francisco attorney David H. Schwartz has handled complex business and commercial litigation cases for Bay Area and California businesses and individuals for more than 30 years. His professional devotion has resulted in precedent-setting cases. He is the author of "Civil RICO Against Fraudulent Enterprises," which appears in the legal text Civil RICO Practice: Causes of Action.

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