We all wish we had a crystal ball to tell us how things will turn out on appeal, but the best we can do is look at the trial court’s rulings and evaluate whether there are grounds for appeal and how solid those grounds may be.
Every trial court proceeding has errors, but the question is whether an error provides a ground for reversal on appeal. When evaluating the grounds for appeal, ask and answer these three basic questions:
- Did an error occur?
- Is the error reviewable on appeal?
- Was the error prejudicial?
Although it may seem intuitive to begin with the first of these questions, a definitive answer to whether an error occurred may require substantial research. So it often makes sense to begin by only briefly analyzing the merits of a suspect ruling, and then determining whether the ruling can be reviewed on appeal and if so, whether an error would be prejudicial. If the suspected error is reviewable and would be considered prejudicial, then you can return to the first question and complete research on whether an error occurred.
The following process provides a useful approach for an appellant evaluating the grounds for appeal:
- Identify suspect rulings that might provide a basis for appeal.
- Ascertain what standard of review the appellate court would apply in reviewing the ruling and analyze the ruling under that standard.
- Verify that a proper record was made in the trial court.
- Examine the ruling in the context of the entire case to evaluate the extent to which it affected the outcome.
- Ascertain the relief the appellate court can grant if it agrees the trial court erred.
- Complete legal research to confirm that the ruling was erroneous.
There’s no magic way to divine your prospects on appeal, but following the process outlined above will go a long way toward making your guess more educated. Details and practical guidance on each of the steps in the process are in CEB’s California Civil Appellate Practice, chapter 2A.
If you decide to file an appeal, get practical advice on crafting your most persuasive brief in CEB’s program Myron Moskovitz on Winning Appeals and Writs, available On Demand.
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