Hiring an Appellate Attorney

By Donna Bader

Just before you take off for your lunch break, a big, fat motion for summary judgment arrives on your desk. You cancel your lunch, pull out a Power Bar that has been sitting in your desk drawer for the last three months, and start to read. Or maybe you have just lost at trial and are mapping out your motion for new trial. Who you gonna call?
Most attorneys do not think to call an appellate attorney until the case has been won or lost and an appeal is inevitable. (Some attorneys finally break down and call the appellate attorney a few weeks before the last extension to file the opening brief expires.) In many cases, the case has been damaged or, in some instances, it is too late to do anything about the error.

Calling the appellate attorney at the early stages of a case is a wise idea for several reasons:

  • In reviewing the appeal, the Court of Appeal is generally limited to the contents of the record below. Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632. If it isn’t in the Clerk’s or Reporter’s Transcripts, for purposes of the appeal, you have a problem. Sometimes it could be a simple failure to designate the document, which is in the court file, and a motion to augment the record on appeal will suffice. If it isn’t in the court record, then it does not exist to the Court of Appeal. Although there are rare instances when something not in the record can be added, don’t take any chances and jeopardize your client’s case.
  • An appellate attorney is often skilled in law and motion. Why not have the appellate attorney prepare or respond to the motion for summary judgment or post-trial motions? Serious errors can occur at this stage, and if it is turned over to an appellate attorney after the motion has been ruled on, it may be too late to pursue an effective appeal. One error often occurs when the attorney fails to file written objections or obtain evidentiary rulings from the trial court on evidence submitted for the motion for summary judgment. Code of Civil Procedure, §437c(b). Another error occurs when the attorney discusses evidence and facts, but fails to add them in the separate statement. If the evidence is not presented in the separate statement, it may not be considered. Lyons v. Security Pacific Nat’l Bank (1995) 40 Cal.App.4th 1001, 1006-1007; Code of Civil Procedure, §437c(b).
  • As a general rule, theories not raised before the lower court cannot be asserted for the first time on appeal. Ernst v. Searle (1933) 218 Cal. 233, 240-241; Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316. If you fail to raise a theory below, you will have handicapped the appellate attorney, thus preventing him or her from raising what might have been strong grounds for the appeal. This includes making the proper objections and offers of proof below.
  • The appellate attorney can offer valuable assistance in preserving issues by preparing a comprehensive statement of decision. A well-crafted statement of decision is essential to appellate review in a nonjury trial, because it lets the reviewing court know the exact ground on which the judgment rests. In fact, without a statement of decision, the appellate court may not be able to determine the trial court’s reasoning, thus preventing review on the substantial evidence standard. Gordon v. Wolfe (1986) 179 Cal.App.3d 162, 168.
  • After trial, the lower court is often faced with a flurry of post-trial motions. Those motions may contain arguments that will eventually form the basis for the appeal. If so, why not avoid duplication of efforts and have the benefit of the appellate attorney’s services in preparing those motions? In fact, an argument based on the excessiveness or inadequacy of damages must be made first in a motion for new trial. Glendale Fed’l Sav. & Loan Ass’n. v. Marina View Heights Develop. Co., Inc. (1977) 66 Cal.App.3d 101, 122.

The assistance of an appellate attorney at the early stages of a case, before it has ripened into an appeal, can be invaluable. The appellate attorney should be helpful in offering a fresh, objective viewpoint, as well as a substantial block of time to devote to the case, while the trial attorney has been living and breathing the case for months, or even years, and has many other cases to attend to.

Don’t wait until the last minute, when a pile of transcripts are collecting dust on your desk. Consult with an appellate attorney when you believe you have an appealable issue and determine how to ensure the record can be adequately preserved for a successful appeal.

How do I hire an Appellate Lawyer