• Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com



Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017





The small world of appellate lawyers

In a recent article in the Daily Journal, the writer reported on the appellate firm of Greines, Martin, Stein & Richland.  She noted that the Greines firm, which frequently competes with appellate firm Horvitz & Levy, has 25 lawyers who, according to Horvitz lawyers, are "friendly competitors and respectful adversaries."  I agree.  That's one of the nice things about practicing appellate law.  Maybe it's because we come across each other so frequently that we try to maintain a friendly civility toward each other.  It is very much a polite society.  Although I don't usually compete with either firm for business, I often find myself facing one or both on the other side.

The author notes that "one thing most appellate specialists seem to share is an academic love of law and language."  So true!  That's not to say that trial attorneys can't enjoy this area of the law, but I find trial attorneys are usually stronger in oral presentation skills rather than in writing and research. Another difference is that appellate attorneys enjoy working with books while trial attorneys seem to enjoy being among people.

The author notes that "Along with growth in this specialty practice has come a move toward bringing appellate lawyers into a case earlier and earlier, even while it is still being conceptualized."  Now we're making progress!  I can think of many times that such a strategy would have been invaluable in protecting the appeal.  For instance, I have observed how much money will be spent on winning or opposing a motion for summary judgment but the documents are not shared with an appellate attorney for review in the early stages of the motion.  I think it is a good move to obtain such a review to make sure the trial attorney has presented the important facts and prepared a solid separate statement.  Having an appellate attorney review the motion can be valuable in identifying triable issues, preparing objections, and responding to the separate statement.

The article omitted any mention of one of the founding members, Martin Stein, who has been my opponent on medical malpractice appeals.  Always a gentleman and a worthy opponent.  And a special recognition of Robin Meadows, who can often be found on the seminar circuit, especially talking up the virtues of e-briefs.

Now, if only I could figure out which attorney plays the Australian didgeridoos (an aboriginal wind instrument).

Substantial evidence: get the reporter's transcript!

If you intend to rely on this standard of review, you must provide a reporter’s transcript of the proceedings.  If you don’t, you will not be able to challenge the sufficiency of the evidence, because you won’t be able to present the entire record to the court.  As a consequence, the court will conclusively presume the evidence supports the judgment.  (In re Estate of Fain (1999) 75 Cal. App.4th 973, 992.)

In In re Estate of Fain, supra, the court stated:

“Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.  To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error     . . . The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.”

(Id. at p. 992; italics in original; citation omitted.)

          It makes sense that the reporter’s transcript must be provided, especially when the standard requires a consideration of the entire record.  (In re Estate of Young (2008) 160 Cal.App.4th 62, 76.)  Quite often, the losing party will be able to point to favorable evidence – often ignoring the evidence supporting the winning party.  Taking this approach can result in alienating the court, particularly when the winning party can present a whole laundry list of evidence that was favorable to him or her.  This approach can even result in a waiver of the point on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

           As a point of caution, appellants often complain that the evidence in favor of the respondent cannot be substantial because the other side was lying and was simply not credible.  That is not enough because the trier of fact can believe one side and not the other.  But if the evidence is not credible because the testimony was physically impossible or obviously false, then such a challenge might be successful.  What is important here is to provide the facts necessary to show on the record, and not for the first time on appeal, that the purported evidence is either physically impossible or false.


Pursuing an appeal based on lack of substantial evidence

Appealing on the ground that the judgment  is not supported by substantial evidence is often unsuccessful, but that doesn’t mean an appellant is without hope.  The attack should not be based on the quantity of evidence but rather the quality of it.  As noted in Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, the appellate court was not meant “‘merely to echo the determinations of the trial court.  A decision supported by a mere scintilla of evidence need not be affirmed on review.’”  (Id. at p. 1633.) 

Kuhn also notes that it is not enough to have ány evidence supporting the judgment; it must be “reasonable . . . , credible, and of solid value. . . The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record.”  (Id. at p. 1633.)  Kuhn also includes inferences as does In re Estate of Young (2008) 160 Cal.App.4th 62, 76 [court distinguishes between inferences based on “logic and reason,” rather than “mere speculation or conjecture.’”]

 What this means for the appellant is that if the respondent has prevailed based on evidence that is not reasonable, the appellant must state facts showing the unreasonableness of the testimony. For instance, if a single witness testifies to what he or she observed, then contrary facts showing either the witness could never have observed those facts or wasn’t even in the same location must be in the record.  This requires a showing that the evidence is “inherently improbable” or “implausible” so that the falsity or impossibility of the evidence is apparent. (Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.) 

Simply rearguing the weight of the evidence will not satisfy this standard.


What is substantial evidence?

What is considered substantial evidence?  We have been told that “[s]ubstantial evidence” must be “of ponderable legal significance, . . . reasonable in nature, credible, and of solid value . . . ‘Obviously the word cannot be deemed synonymous with ‘any’ evidence.’”  (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.)  Moreover, in resolving appeals based on this ground, the courts will look to the entire record, and not just to evidence that is favorable to the appellant or isolated from a consideration of the record as a whole.  (Ibid.)

 In my opinion, the term “substantial evidence” is not accurate.  To say that substantial evidence supports the judgment implies a weighing or that the quantity of evidence is somehow significant.  We know that is not always the case.  Juries are often instructed that they can believe one witness over a multitude of witnesses.  What matters is that there is credible evidence to support the decision.

An appeal on this ground also should avoid examining the evidence with a focus on credibility, because that is the function of the trier of fact and not the appellate courts.  Clients will often complain that a witness has lied but unless that lie can be affirmatively established on the record, the jury is entitled to believe who it wants.  (Tupman v. Haberkern (1929) 208 Cal. 256, 261; In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.)

Nor does it matter that the appellate court considered the evidence and had they been the triers of fact, they might have ruled in another way or even found there was substantial evidence to support a different decision.  The appellate court cannot substitute its opinions and conclusions for those of the trier of fact.  (Bowers v. Bernards, supra, 150 Cal.App.3d 870, 874 [“If such substantial evidence can be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.”]


On to the substantial evidence standard of review

The substantial evidence standard of review  applies when the appealable order or judgment involves the trial court’s determination of disputed fact issues.   It is frequently raised when a trial has been concluded and the jury or court found in favor of one party over the other based on the evidence presented.  This ground may also arise when the trial court or jury resolves any factual dispute. 

Simply stated, the appellate courts are bound by the trial court’s resolution of disputed factual issues and must affirm the judgment so long as the judgment is supported by “substantial evidence.”  (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) 

Of all the standards of review, this standard is probably the weakest.  Reversals are rare, although not impossible, and as noted in Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 678, “[d]efendants raising a claim of insufficiency of the evidence assumes [sic] a daunting burden.