Defy the Odds: How to Choose Appellate Arguments

What Are My Odds of Winning?

This is the most common question I receive from trial attorneys seeking to challenge an adverse ruling or finding themselves lamentably responding to defendant’s appeal. The answer depends largely on the standard(s) of appellate review, and specifically, which standard(s) apply to the arguments you’re raising or challenging.**

To advantageously use standards of review, it is necessary to understand that the appellate court assumes the lower court’s ruling was correct. Appellant’s job is to overcome this “presumption of correctness” by demonstrating prejudicial error. The appellate court gives different levels of deference to the trial court’s rulings, depending on the nature of the error alleged. These levels of deference are governed by the standard of review. The three primary standards of review in the order of least to most deference are:

De Novo (Independent)

This applies to review of purely legal issues (e.g., statutory interpretation). The appellate court decides the issue anew, giving no deference to the reasoning behind the trial court’s decision. – no deference

Substantial Evidence

This applies where challenged ruling depends on disputed facts (e.g., witness credibility, punitive damages). The appellate court determines whether the record as a whole demonstrates substantial evidence (reasonable, credible, in support of the appealed judgment or order – deference to factfinder determination unless legally insufficient

Abuse of Discretion

This applies where trial judge exercised discretion (e.g., discovery orders, evidentiary issues) – significant deference

There are certain circumstances where the court applies a presumption in favor of the appellant, drawing inferences and resolving credibility disputes in appellant’s favor rather than respondent. These show up most frequently in summary judgment appeals, appeals challenging jury instructions, or from challenges to grants of JNOV, nonsuit, or directed verdict.

How Then, Do You Use the Standards of Review to Increase Your Odds of Winning?

If you represent the appellant, you have the choice of what legal issue(s) to raise. Not every error at trial is one that the appellate court will correct, especially if the error was the result of a discretionary ruling. If you have multiple issues, lead with the one that has the most favorable standard of review. You may also consider challenging only a select issue or two rather than all of the errors the trial court made.

Did you have really good facts? Perhaps you can take advantage of the reversed presumption by raising a legal challenge that permits you to present facts in the light most favor to your client. In your reply brief, if you notice the respondent applied a different and incorrect standard of review, make sure to highlight that fact.

What if you represent the respondent? Keep in mind that opposing counsel will have likely attempted to choose legal arguments with the most favorable standards of review to its position. Do not assume counsel has chosen the correct standard for the issue raised. Commonly, I see opposing counsel giving lip service to the correct legal standard and either completely ignore it or apply a more favorable standard. Stay vigilant!

So what are your odds of winning? It depends largely on the issues you or your opposing counsel select.

** Disclaimer: This legal area is so nuanced that the Rutter Guide Civil Appeals & Writs devotes a subchapter to it. This brief discussion focuses on big picture concepts.


Janet Gusdorff