Appeals Begin at the Start of the Case, Not the End
(How I Learned to Stop Worrying and Love the Trial)
Ronald W. Nelson
Lenexa, Kansas
In the News:
Harold Hamm's Ex-Wife Vows To Appeal Divorce Case After Cashing $975 Million Check1 “Feeling shortchanged by a ruling that allows the Continental Resources (CLR.N) chief executive
officer to keep around 94 percent of the estimated $18 billion rise in his Continental shares during a
26-year marriage, Sue Ann Hamm will appeal within a few weeks, one of her lawyers, Ron Barber,
told Reuters on Thursday. She believes the decision was ‘not equitable,’ Barber said.”2
“CA Investigation: Family custody battle exposes flaws in child protection system”
“The three grandparents said they never considered giving up and will appeal in Circuit Court if the
children aren’t removed from the cousin’s care during the appeal in Juvenile Court.”3
“Lawyer Loses Bid for Free Transcript Copy, Promises Appeal”4
“A hearing over whether a lawyer can force a court reporter to provide a free electronic copy of a
transcript started with an argument over who would transcribe Wednesday's proceeding.”
“If I lose, I’ll just appeal!” It’s often the first thing a litigant – or attorney – thinks (or says) when facing
the possibility of “losing” a trial court argument. Nearly always, it’s because the person saying it thinks
the judge will make an “unfair” or “wrong” ruling on one or more of issues: excluding evidence when it
“should have been” admitted; admitting evidence when it should have been refused; dividing property –
or parenting time or custody of the children or the pets, or deciding any of a thousand other things – in a
way different from the way the litigant proposed. Litigants usually consider appealing adverse rulings
because they’re unhappy with the result. They want to prove – to the other side and (especially) to the
judge who decided the case against them – that they were “right” and that anyone who disagrees was
“wrong.”
But what is the reality? What really happens when appealing a trial court’s decision? And how can I show
that judge how wrong a decision that was? As it turns out, reality is different than its advance publicity by
parties who lose a trial court decision.
“Nothing ever becomes real ‘til it is experienced.” – John Keats
1
Harold Hamm's Ex-Wife Vows To Appeal Divorce Case After Cashing $975 Million Check,
http://www.huffingtonpost.com/2015/01/12/harold-hamms-ex-appeals-divorce-case_n_6458368.html (last accessed June
19, 2015 07:15)
2
Ex-wife of US oil baron to appeal $1 billion divorce award, http://www.reuters.com/article/2014/11/13/us-hamm-divorceappeal-exclusive-idUSKCN0IX2IV20141113 (last accessed June 19, 2015 07:08)
3
Commercial Appeal, http://www.commercialappeal.com/news/investigations/ca-investigation-family-custody-battle-exposesflaws-in-child-protection-system_41991505 (last accessed June 19, 2015 07:45)
4
Daily Report, http://www.dailyreportonline.com/id=1202724283095/Lawyer-Loses-Bid-for-Free-Transcript-Copy-PromisesAppeal#ixzz3dVlLlT7U (last accessed June 19, 2015 07:53)
It turns out that pursuing the successful appeal of an adverse court decision isn’t nearly as cut and dried as
a losing party thinks – and certainly not as much as that party may publicize. In reality, success on appeal
is much more complicated than showing that the judge made the “wrong” decision. Instead, pursuing an
appeal involves evaluating many difficult and complex factors – including how and when to proceed with
the appeal; how to frame the issues on appeal; choosing the best issues for the appeal; making an honest
evaluation of the likelihood of success on appeal; evaluating what “success” – or failure – on appeal will
mean after the appeal; what will happen on the disputed matter while the appeal is underway; the cost of
“success;” and the costs and effects of failure.
Forethought
It’s easy to file an appeal. In most states, all that needs done is to file a short, simple statement declaring
that an appeal is taken from the court’s decision and identifying the court to which the appeal is taken.5
But whether to appeal – and what to appeal – is usually controlled more by what happens before the
decision to appeal than by the ruling from which appeal is taken. And there are many traps for the unwary.
One thing is certain: statistically, few appeals succeed.6 A large part of the reason why so few appeals
success is because so many appellants don’t understand the purpose for an appeal or what it is that
appeals courts do – and don’t understand that what happens on appeal is often the result of decision made
before the adverse decision. A successful appeal often isn’t a matter of whose “right.” Instead, success on
appeals is a matter of awareness, planning, and strategic execution.
Awareness: The Standards of Review
Many appeals are filed every day in state and federal courts seeking to overturn decisions perceived as
wrong by the “losing” party. But very few appeals culminate in the desired result: an outright reversal of
the lower court’s decision. The reason in most cases is attributable to the “standard of review” – the
amount of deference an appellate court gives to the lower court decisions it reviews. As one author wrote:
“as a concept, it [the standard of review] is essential to every appellate court decision. It is to the appellate
court what the burden of proof is to the trial court.” 7
Reviewing decisions.
Appellate courts exercise the most stringent standard of review when faced with decisions from a trial
court on pure legal issues. But most family law appeals don't involve "pure legal issues." Instead, family
law appeals are heavily dependent upon the unique factual situations presented in each. Generally,
appellate courts in the United States apply three different “standards of review” in each of three categories
of appellate situations: (1) where the court is asked to review the facts on which the decision is based,
(2) where the court is asked to review the exercise of discretion by the lower court, and (3) where the
court is asked to review a decision of law made by the lower court. Although each jurisdiction varies in
5
See Fed.R.App.P 4; Mo.S.Ct. Rule 81.08
The most recent statistics from the United States Courts System show that only 7.2% of all appeals resulted in a reversal – with
civil appeals only showing a 13.1% reversal rate. See “Decisions in Cases Terminated on the Merits, by Circuit and
Nature of Proceeding, During the 12-Month Period Ending June 30, 2014,” Statistical Tables For The Federal Judiciary,
http://www.uscourts.gov/file/9749/download (last accessed July 14, 2015).
7
K. Kunsch, “Standard of Review (State and Federal): A Primer,” 18 Seattle L. Rev. 11, 13 (1994).
6
the way it describes the “standard of review applied to each, they are usually referred to as: “substantial
competent evidence,8” “abuse of discretion,9” and “de novo review.10”
Reviewing facts.
Trial court decisions in most civil cases – and almost all decisions in family law cases – are based on the
presentation of disputed facts by opposing parties, requiring the trial judge to determine the facts
underlying the court’s ultimate judgment by “preponderance of evidence” – that is by deciding what facts
are “more probably true than not true.” The burden of proving a particular set of facts leading to success
is usually placed on one party or the other depending on the matter at issue before the trial court. If the
trial judge believes a party sustains the burden of proof – or “burden of persuasion” – placed on that party,
then that party should be successful. This initial decision about whether a party has satisfied the burden of
proof or persuasion presents the first reason why so few appeals are not successful: appellate courts
decide issues of law, not issues of fact. So the first hurdle anyone appealing a trial court decision must
face is the most obvious: An appeal does not give a defeated litigant another opportunity to prove that
party’s case. Appeals courts hear arguments on legal issues. Appeals courts do not rehear an issue anew.
An appeal does not allow an appealing party to correct mistakes or failures in presenting evidence or
testimony supporting that parties’ case that were made in the trial court. Appeals courts also do not
reweigh, reexamine, or re-determine which party’s narrative or case presentation is more persuasive.
Instead, with few exceptions, appellate courts presume that sufficient facts were presented to the trial
judge to support whatever factual decision the judge made on conflicting facts. When deciding if any
“legal error” exists in the trial court’s decision, appellate courts first rely on the trial courts to determine
the applicable underlying facts so the appellate courts don’t have to “rehear” the same disputed issues. So
only when the appellate court determines that the trial judge did not have testimony or evidence sufficient
to support a particular decision on a “material” finding will the appellate court consider the facts
determined by a trial judge erroneous. The standard of review usually applied in deciding that a trial
court’s decision of a material issue of fact was erroneous is often called the “substantial competent
evidence” (sometimes simply, “substantial evidence”) standard.
Although the phrase seems to connote a large sum of evidence, it means nearly the opposite. “Substantial
competent evidence” is “evidence possessing something of substance and relevant consequence and
which furnishes a substantial basis of fact from which issues can reasonably be resolved.”11 “Substantial
evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”12 Under the “substantial competent evidence” standard, the
appellate court views the evidence in the light most favorable to the prevailing party. Usually, the court is
concerned only with evidence that supports the trial court’s findings and not with evidence that might
have supported contrary findings.
Reviewing discretion
Decisions that sort out disputed facts are not the only trial court decisions subject to a demanding
appellate burden. Appeals courts also place a high burden of proof on any appellant who tries to show that
8
Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc 2012); White v. Director of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc
2010).
9
See e.g. In re Marriage of Soehlke, 398 S.W.3d 10 (Mo. banc 2013)
10
State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 856 (Mo. banc 2006).
11
In re Estate of Phillips, 4 Kan.App.2d 256, 604 P.2d 747 (1980); Perdue vs. TJ Palm Associates, Ltd., 755 So.2d 660, 665 (Fla.
4th DCA 2000).
12
Consolidated Edison v. NLRB, 305 US 197, 229, 59 S.Ct. 206, 83 L.Ed.2d 126 (1938).
a trial court erred in its “discretionary” decisions, including the way in which property is divided between
the parties in a divorce, the specific schedule of parenting time allocated between a child’s parents, and
many other decisions that involve “mixed questions of law and fact.” And because broad statutory
directives rather than specific statutory instructions govern how judges decide family law issues, the
appellate standard applied to these discretionary decisions is nearly as high as the “sufficient competent
evidence” standard applied to decisions of fact. The name of the appellate standard itself gives a hint at
the stiff burden: the “abuse of discretion” standard, sometimes known as the “clearly erroneous” or the
“arbitrary and capricious” standard of review. But by whatever name, appellate courts’ review of a lower
court’s discretionary decisions is full of deference. As explained by one court: “Judicial discretion is
abused when judicial action is arbitrary, fanciful or unreasonable,” which is another way of saying that
discretion is abused only where no other reasonable judge would take the same view adopted by the trial
court. “If reasonable men could differ as to the propriety of the action taken by the trial court then it
cannot be said that the trial court abused its discretion.”
In this area, appellate courts give strong preference to the judge who observed, heard, and acted
with the parties who presented their cases and who was able to evaluate the evidence as it was presented,
rule on matters in context, and observe the demeanor and attitudes of everyone involved. When the law
assigns to a judge the responsibility to hear and make discretionary decisions based on the circumstances
that existed, appellate courts avoid “re-deciding” or re-evaluating those discretionary decisions unless
they are clearly outside the norm. If appellate courts did otherwise, it would create more uncertainty in
cases, foster disrespect of the initial process, and encourage anyone who lost a discretionary decision to
seek “justice” from another court.
Reviewing the law
When an appellate issue involves the interpretation of the law, appellate courts review the issue de novo –
that is, “anew” or “from the beginning.” Although every judge and every court decides how to apply the
law, when the question before the court is “what is the law,” the ultimate decision of that issue is for the
highest court to which that issue may be appealed: the court that has the last decision about what a
particular law means or what principle of law applies. While a trial court has great latitude within the
parameters of the law to do what that judge believes is appropriate, judges cannot ignore the law.
Appellate courts typically have two functions: deciding what the law is or means and correcting erroneous
legal decisions. As mentioned above, appellate courts do not rehear cases re-determining what would
have been the best or correct decision. Instead, appeals courts decide if the trial court correctly determined
the law applicable to the case and interpreted the law correctly.
Whether the district court has the power to hear a particular case or enter a particular order (e.g. whether
the court has subject matter jurisdiction or personal jurisdiction exists) is an issue of law subject to full
review by the appellate courts. Appellate courts also have equal power to decide whether a statute applies,
what the statute means, what a principle of law applies, and how the law is rightly interpreted.
Additionally, because contracts are to be interpreted “in their four corners,” appellate have the same
ability to interpret that contract language and the de novo standard similarly applies.
An appeals court reviewing issues of law de novo, does not defer to the way in which the trial court
interpreted the law. Instead, appellate courts analyze the law independent of the trial court’s decision,
deciding on its own the interpretation that should be given or what legal principles should apply.
At the same time, potential appellants should understand that merely because appellate courts analyze
issues of law without deference to the trial court doesn’t mean there’s a huge likelihood of success. Two
independent, impartial decision makers will often make the same decision when reading the same words.
So an appealing party should always remember that fact automatically means that there is less than an
equal chance of prevailing before the appellate court.
Protect the record; put forward the best case.
An appeal begins – and ends – with the record. The difficulty of success on appeal challenging decisions
over facts and discretion does not mean that an appeal should not be considered when the trial court
makes a significant error on a critical issue. And the fact that appellate courts consider issues of law de
novo also should not be view as encouragement to appeal adverse decisions on legal issues. What it does
mean is that the practitioner needs to put forward the best possible case with the trial court every time on
every issue, rather than relying on changing the result on appeal. The statistical chances of winning an
appeal are small, so the best chance is always to succeed in the first chance to convince a judge of the
“rightness” of the position asserted.
Putting together the best case every time isn’t only important because the first chance is the best chance.
It’s also critical to the success of an appeal from any adverse decision. Because appellate courts look first
to the findings of the trial court; and because appellate courts presume that the trial judge properly
considered all evidence placed before that court, if evidence supporting an appellant’s claims of error
don’t appear in the record on appeal, then it doesn’t exist for purposes of the appeal – and the already slim
chances of overturning an erroneous trial court decision plummets further.
Every challenge to a trial court decision – whether by a motion to reconsider, amend, for new trial, to set
aside the decision, by some other post-trial motion, or by appeal has diminishing returns. The best way to
protect the record on appeal for any possible claim of error is to make sure that objections are timely
made, testimony and evidence is properly admitted, that that the record is complete, and the when the trial
judge rules evidence inadmissible an offer of proof in the record exists. If the record isn’t protected, if
objections aren’t made to keep out inadmissible evidence, if offers of proof aren’t made to show the
importance of proposed evidence, appellate courts will presume the evidence appropriate and that the
problem was not raised first with the trial judge. A cardinal rule of appellate courts on nearly all issues is
that if an issue wasn’t first raised to the trial court, if no adequate and continuing objection made to
evidence asserted inappropriate, and that evidence not in the record by stipulation, admission, or offer of
proof doesn’t exist, or the appellant didn’t seek its consideration, or the issue was not addressed by the
trial court. Except in very rare situations, appellate courts will not consider issues not first vetted by the
trial judge.
Another important part of making a complete record for the purposes of an appeal is to make sure that the
findings made by the lower court are explicit and detailed. Since appellate courts presume that the
procedures and decisions by trial courts are “regular and complete,” anyone who claims the lower court
failed to consider some fact, wrongly considered other facts, or failed to make adequate findings of fact to
support its ultimate decision must overcome the presumption of regularity and prove within the record a
basis for the assertion that the trial court did not do so. As with everything else in an appeal, that proof
must appear within the record. And “proof of a negative” is nearly impossible without explicit
acknowledgement by the trial court that it did not consider the asserted factor.
If a hearing held “off the record” there’s no record for the appellate court to review. Whenever a trial
court holds a hearing (other than for scheduling), it should be officially reported by whatever method the
trial court has adopted. If critical testimonial or documentary evidence is proposed but declined admission,
an offer of proof should be made. If improper adverse testimonial or documentary evidence proposed,
clear and adequate objections must be made to that offer. “Protecting the record” requires that any
objection, proof, and legal assertion that may form a basis for later appeal or may underlie the claim of
legal error should be made at the appropriate time and every time the issue may arise. Every failure makes
later appeal more difficult increasing the likelihood that an appellate court will reject the appeal and
affirm the trial court’s decision.
Choose wisely.
Going through pre-trial and trial proceedings, numerous issues may be considered for later possible
appeal. But the existence of multiple possible appeal issues isn’t a reason to use every one; instead, it’s
important to choose the best issues for later appeal and to build a record around those issues.
The Seventh Circuit U.S. Court of Appeals emphasized the importance of focusing only on the best
appeal issues for an appeal in a recent class action appeals decision.13 The case was originally filed to
enforce and to obtain damages under federal law for an employer’s failure to offer laid off or discharged
workers an opportunity to continue health insurance (including dental and vision) benefits at their own
expense. It resulted in a final decision that the appealing attorney claimed assessed penalties that were too
low, certified a class that was too small, and ultimately awarded attorneys’ fees that were too modest.
Although notable for other appellate faux pas, the Court emphasized that an attorney must choose the
right appellate issues – and limit the number of them. The Court wrote:
. . . We have mentioned [appellants’ attorney’s] failure to comply with our order to
address the interaction between Rule 23(c)(3) and Rule 58. And his brief on the merits
has problems beyond those pointed out already. It presents 13 issues for decision,
violating the principle that appellate counsel must concentrate attention on the best issues.
(To brief more than three or four issues not only diverts the judges’ attention but also
means that none of the issues will be addressed in the necessary depth; an appellate brief
covering 13 issues can spend only a few pages on each.) The brief’s writing is careless to
boot; it conveys the impression of “dictated but not read.” Here are two sentences: “This
Court should be entered a high daily statutory penalty in this matter. Respectfully, the
award of the District Court to the contrary law and an abuse of discretion.” There’s more,
equally ungrammatical. [Appellants’ attorney’s] is in no position to contend that his
compensation is too low.14
Win, lose, or draw.
It’s important to understand when considering appeal that “winning” (reversed) and “losing” (affirmed)
are not the only two possible outcomes in an appeal. In fact, although the vast majority of appeals end up
with the appellate court affirming the results from the trial court, even if the appeals court finds that the
trial judge erroneously decided an issue on appeal, that does not mean the end of the issue. Depending on
the nature of the case and the number of issues on appeal, the appellate court can make a wide variety of
decisions that result not in the end of the case, but in the case being remanded back to the trial court for
further review. Even when an appellate court finds that a legal error was made, the court will probably
remand the case back to the trial court to reconsider it’s other rulings in light of the appellate court’s
decision on the meaning of the law.
The possibilities are endless. For example, when deciding whether the trial court’s interpretation of a
premarital agreement was correct, the appeals could find: (1) the contract interpretation correct and the
result appropriate; (2) the contract interpretation incorrect, but the result appropriate; (3) the contract
interpretation correct, but the result inappropriate; (4) the interpretation was correct, but additional
13
Darryl Pierce and Sharon Pierce, on behalf of themselves and a class v. Visteron Corporation and Visteron Systems, LLC,
No. 14-2542 (slip op. July 1, 2015)(last access July 14, 2015 at: http://www.wiappellatelaw.com/wpcontent/uploads/sites/186/2015/07/Pierce-v-Visteon.pdf)
14
Id.
alternatives should have been considered to determine the appropriate result; (5) the interpretation was
correct, but other factors presented to the trial court should also have been considered in determining the
end result; other possibilities depending on the nature of the agreement and the circumstances presented
in the record.
Time and Money
Losing litigants rarely think about how much an appeal will cost – or about how long the appeals process
will take. They presume that appealing a decision with which they disagree will be quick, simple – and
inexpensive. They’ve gone through the already expensive and time consuming process of filing,
responding, discovering, motion hearings, trial preparation, presenting witnesses and evidence at the trial,
and gathering together the legal authority needed to convince the trial court of the rightness of their
position – then arguing to the judge why the decision made was wrong. What else could there be? How
much could it cost? How long could it take? The answer, “lots.”
Except in cases where all the essential facts are agreed and the legal issue clear, the process of an appeal
can be long and expensive. The process can last well over one, two, or three years depending on the
court’s caseload and backlog, the issues presented, the time needed to prepare the record for consideration
by the appellate court, the time to prepare written briefs, oral argument if allowed, and waiting for the
appeals court to issue its decision. Most courts allow some number of extensions of time to reporters and
clerks to prepare the record, to litigants to prepare their briefs, and to those responding to the appeal all to
make sure that the appeals court has a well-prepared case before it.
These factors also contribute to the high cost for most appeals. When reviewing and preparing any appeal,
an attorney must complete a detailed, time-consuming review of the record before the trial court,
including a complete, detailed review of the transcript of the lower court’s hearing of the matter, a review
of all testimony presented, of any exhibits introduced – and rejected if an offer of proof was made, and
consideration of other matters that occurred leading up to that hearing, and any related hearings after the
primary hearing. In addition, the attorney preparing the appeal must fully and independently review the
cases that may apply to the various issues for which appeal is sought – both from the state within which
the appeal is taken and other states if those other states have address the same or a similar issue.
In finding the best issues to present to the appellate court, appellate attorneys must search out other
similar cases that the appeals courts have decided and explain in written form why those cases are similar
or different and why the proposed application of the law makes more legal sense than the decision made
by the trial judge. Additionally, the appellate lawyer must find the best way to present the issues to the
appellate court, making sure the argument is clear and convincing, the language understandable and
strong, the length short and to the point. All of which requires time increasing the cost of the final product.