Sometimes things go terribly wrong at trial or a hearing. This does not always mean you can appeal the decisions. This is why it is so important to get it right in the first place. However, you can do everything right and still get a wrong result. It happens. So now what?
1. Time is of the essence. There are strict time limits that must be complied with. Make sure you find out if a Writ or an Appeal is appropriate. Motions for reconsideration will not stop the clock.
2. Not all orders are appealable, and some issues need to be done by way of Writ Petition. Find out immediately what your next step should be as soon as the ruling is rendered.
3. This is not a do-over. The appellate court will uphold the lower court’s ruling any way possible. They start with the presumption that the ruling was the correct result.
So, what does that mean? Learn what can and cannot be done before you do anything.
Navigating in a higher court is a difficult process. The process needs to be precise. There are rules for citing cases and to the record of the lower court, and if not done correctly, the entire appeal can be dismissed. You have to point to the record at the prior hearing, and also point to specific law to support your position. Briefs must include a table of contents, including a table of authorities that direct the higher court to where they are cited in your brief. You have to accurately include why the case is appealable and if not, why it is being sought as writ and what type of writ.
Summarize the case as to what the prior court did wrong, and what the proper standard of review would be. You direct the court to the authority that says your case is appealable and what standard of review it needs to use. You must be exact in what it is you want the appellate court to do.
Also, appellate courts do not weigh credibility. Whatever the trial court found, they have to agree with. All factual findings by a lower court are considered to be true. They will not reweigh the facts unless it is what is known as a de novo review. This is only if the Court misapplied the law or had improper interpretation of a contract.
The standards of review at the appellate level are: Substantial Evidence, Abuse of Discretion, and Misapplication of the Law. It is important to know where your case falls.
Substantial evidence would make it highly unlikely you will win on appeal. Any evidence, including implied findings, is enough to affirm the lower court. Even if the burden is high in the lower court, if there is any evidence at all, the trial court will be affirmed.
Abuse of discretion would require you to prove that no judge anywhere could have possibly made the decisions it did. Even if the justices at the appellate court would have made a different decision, they will affirm the trial court unless no-one could have decided as the lower court did. This is also difficult. Although, an abuse of discretion will lie if the trial court refuses to actually exercise its discretion or did not do so along required principles of law. You may see your case that way because you want a different result, but an appellate lawyer can look beyond wishful thinking to give you a realistic view on your case.
Misapplication of the law is the best case to have. If the trial court committed misapplication of law you have your best opportunity to win, but that is not always as simple as it sounds. Also, unlike busy trial judges, appellate courts have larger staff to review every detail of your case. They will likely know it better than you or your attorney. They won’t even likely read your brief until all of your authority cited is thoroughly researched, and they have a full knowledge of the law in your case. Then they will review the record with the presumption toward the trial court coming to a correct result. Then and only then, will your brief likely be read. Even so, having a thoughtful and well written brief makes a huge difference.
If it looks like your case is heading in the wrong direction, it may be important to hire an appellate lawyer to help you make a proper record for an appeal. Objections not made during a trial or hearing are waived. Arguments not raised are also waived. An appellate lawyer can assist with seeking a proper statement of decision to assure the appellate court is aware of what and why the court is deciding what it is. Then, it would be easier to have it correct on appeal if necessary. Sometimes keeping the court focused on the law forces them to explain their decision in writing, will get the court to do the right thing in the first place. Then you can avoid the need for an appeal altogether.
The attorneys at Laurie Peters & Associates know how to assist you in the event that you need a writ or appeal. An experienced lawyer will give your case the attention it deserves. Call today for a low-cost initial consultation.