The author is with Horvitz & Levy LLP, Encino, California.
Congratulations. You’ve just won a grueling six-week jury trial. You and your client are thrilled. Just as you are getting ready to close your file and put another victory under your belt, the notice of appeal arrives in the mail.
Not to worry. As the appellee, you have certain advantages over the appellant. Knowing how to maximize your position as the appellee is half the battle, and it can make the difference between a winning brief and a losing brief.
So whether your opponent is appealing from a jury trial or from a pretrial ruling, here are some strategic tips on how to make the best out of being an appellee and increase the chances that your hard-fought victory remains intact.
The fact section is arguably the most important part of any appellate brief. Many judges say that they know which way a case will come out once they have read the statement of facts, even before they have read the legal argument. As tempting as it may be to incorporate by reference the appellant’s statement of undisputed facts and procedural history, you should resist the urge. Instead, tell your own story, from your and your client’s own perspective.
It is almost always possible to state facts in a manner that favors one side or another, while still adhering to the rules and accurately representing the appellate record. The tone of a sentence, as well as the omission or inclusion of certain details, can tell a very different story.
For example, consider the following two sentences, both about the same car accident:
Sally and Jim got into a car accident, in which Jim was injured.
Sally ran a red light and hit Jim’s car, badly injuring him.
Although the two sentences convey similar information, they are told from different perspectives. One emphasizes Sally’s fault and Jim’s injuries, while the other does not.
It is important to use these narrative tools to tell your story, even if you don’t dispute the facts presented in the appellant’s brief. Remember, appellate judges are people. They will have an emotional reaction to the story you tell.
While you are reading the appellant’s opening brief and crafting your response, keep in mind that you prevailed in the trial court, and the appellant didn’t. So although the appellee’s brief should thoroughly address all of the appellant’s contentions, try not to be too defensive by simply rebutting the appellant’s arguments, one by one. The appellee’s brief should stand on its own and, from an offensive position, explain why the judgment should be affirmed and why the correct party prevailed below.
To that end, the appellee’s brief need not address the appellant’s arguments in the same order in which they appear in the opening brief. An appellant normally will start off a brief with its best argument (which, in turn, could be your weakest argument). For this very reason, it may be advisable to present your arguments in a different order.
You likely will want to make your strongest arguments first and then explain, as necessary, why the appellant’s arguments have no merit. For example, do you have an argument that is dispositive of all of the appellant’s arguments? If so, you should place that argument first in your brief, even if the appellant addressed it last. That way, you can tell the appellate court up front why it should affirm and why it doesn’t need to reach the other arguments presented by the appellant.
Also, be careful not to frame the issue in the same language that the appellant uses. The appellant usually will state the issues in a way that is most beneficial to its position (and least beneficial to your position). For example, in an insurance coverage dispute, the appellant may state the issue on appeal as follows: “Did the trial court err in dismissing the insured’s coverage claims as a matter of law, based on an exclusionary endorsement in the insurance policy, even though the endorsement is not clear and conspicuous as required under California law?”
As the appellee, you would want to frame the issue in a way that does not assume the endorsement was unenforceable. For example, the issue from the appellee’s perspective might read: “Was the endorsement in the insurance policy conspicuous, plain, and clear, and therefore enforceable under California law?” That way, you affirmatively frame the issue to your advantage.
The standard of review is perhaps the appellee’s biggest advantage on appeal because the appealed judgment or order is presumed to be correct, until the appellant proves otherwise. That means any ambiguity in the record is resolved in favor of the appealed judgment or order, and when the record is silent, an appellate court never speculates that trial court error occurred.
There are three general standards of appellate review: substantial evidence, abuse of discretion, and de novo review. The applicable standard of review is determined by the nature of the challenged trial court action and the issues raised on appeal.
When either the substantial-evidence or the abuse-of-
discretion standard of review applies, the appellee is at a distinct advantage over the appellant because all presumptions tilt in the appellee’s favor. When the appellate court applies the de novo standard of review, however, the appellant and appellee are on equal ground. It is important to keep the standard of review in mind at all times and frame your arguments accordingly.
If the appellant is challenging a factual determination, the appellate court typically reviews the judgment to determine whether there is “substantial evidence” to support the finding. Appellees have a distinct advantage in opposing substantial-evidence arguments because all conflicting evidence and inferences in the record are resolved in favor of the appellee. Moreover, so long as there is some evidence in the record supporting the judgment, the appellate court usually will affirm.
This is so even if there is conflicting evidence in the record. Accordingly, a substantial-evidence argument can typically be defeated if the appellee simply recites the evidence and testimony supporting the judgment. Keep in mind that the testimony of a single witness usually can qualify as substantial evidence, and the appellate court usually does not consider witnesses’ credibility on appeal.
If your opponent is arguing that a witness’s testimony does not constitute substantial evidence because that witness was unreliable, it might be prudent to remind the appellate court that it is the finder of fact (the trial court or the jury) that weighs the evidence and determines credibility.
Discretionary trial court rulings are reviewed under the “abuse of discretion” standard. Under that standard, it is not enough for an appellant to argue that a different ruling would have been “better.” Rather, appellate courts disturb discretionary trial court rulings only upon a showing of a clear case of abuse and a miscarriage of justice.
In opposing this type of argument, keep in mind that it is the appellant’s burden to establish that the trial court’s action was an abuse of discretion and that it is a very high burden. To meet its burden, the appellant ordinarily has to show that the trial court’s ruling was clearly contrary to established law or the undisputed evidence or was beyond the bounds of reason.
Thus, as the appellee, it is important to emphasize that the trial court’s determination was reasonable in light of the whole record and did not constitute a miscarriage of justice, even if the trial court conceivably could have reached a different conclusion.
If the appellant is appealing from a judgment presenting a pure question of law and no facts are in dispute, the appellate court will apply a de novo, or independent, standard of review. Under a de novo standard of review, the appellate court gives no deference to the trial court’s ruling. When this standard of review applies, the appellee does not have an advantage over the appellant, as the appellate court looks at the issue afresh.
An appellate court reviews the trial court’s ruling, order, or judgment, but not its reasoning. When an alternative rule of law applies to a given body of facts, yielding the same legally correct answer, an appellate court can affirm a judgment on that alternative basis, regardless of the rationale relied on by the trial court.
As the appellee, therefore, it is a good strategy to consider whether there are any alternative grounds to support the trial court’s judgment and, if so, to present those alternative grounds as support for the judgment. That way, if the appellate court rejects your argument supporting the trial court’s rationale, it has a road map for affirming the judgment on other grounds.
For example, if the appellant is appealing from an order granting a motion to dismiss, then you, as the appellee, should consider whether there are any additional arguments in support of the motion to dismiss that the trial court ignored. If so, revive those arguments on appeal in a section of your brief entitled something like this: “The judgment also can be affirmed on an alternative basis not relied on by the trial court.”
Waiver, which can take many forms, is almost always your friend. It is important to keep an eye out for any instances of waiver by the appellant and to use them to your advantage. Here are some of the most common.
An appellant cannot ask the trial court to consider facts that were not presented to the trial court. Such facts are not part of the record on appeal, and by failing to present such facts to the trial court, the appellant likely has waived its right to have them considered on appeal.
When reading the appellant’s opening brief and the appellate record, watch out for facts that were not presented to the trial court. Bring those facts to the attention of the appellate court by filing a motion to strike or simply by arguing in your appellee’s brief that the appellant waived its right to present those facts to the reviewing court.
An appellant can waive an argument by either expressly agreeing with or acquiescing to the trial court’s actions. Waiver also will occur if the appellant fails to bring an error to the trial court’s attention in an appropriate manner, by way of a timely motion or objection, especially when the appellant had an opportunity to do so.
The appellant cannot observe an error during the trial court proceedings, sit on its hands, and then raise that error for the first time on appeal. Therefore, it is important for the appellee, when reviewing the record, to note the appellant’s actions and statements surrounding the claimed error on appeal.
For example, if the appellant is challenging an instruction that was given to the jury, did the appellant object to that jury instruction? If not, you should explain in your brief that the appellant has waived its right to challenge the jury instruction on appeal. Note, though, that an appellate court may find no waiver if objecting to the trial court’s action would have been futile.
An appellant also can waive an argument by failing to raise it in the opening brief. Raising an argument for the first time in the reply brief won’t do, as the appellee is deprived of an opportunity to respond. So, when reviewing the reply brief, keep an eye out for any new issues that did not appear in the opening brief. If you see an argument raised for the first time in a reply brief, consider bringing a motion to strike that portion of the brief.
In an appeal challenging the sufficiency of the evidence, the appellant’s opening brief must present all of the material evidence on point. Otherwise, the appellate court has discretion to treat a lack of substantial-evidence argument as waived and presume that the record contains sufficient evidence to uphold the judgment. In other words, the appellant cannot simply state the facts that are favorable to it.
If you notice that the appellant’s opening brief ignores material evidence in favor of the appellee, you should point that out in your appellee’s brief and argue waiver. (Remember that as an appellee defending against a substantial-evidence challenge, you need only highlight the evidence sufficient to support the judgment. Therefore, unlike the appellant, you run no risk of waiver if you do not recite all of the material evidence supporting the judgment.)
Perhaps the trial court did make an error during the trial court proceedings. In that situation, you as the appellee should argue whenever possible that the error was harmless and therefore does not warrant reversal. An error is generally deemed harmless if it did not affect the outcome of the case. If correcting the flaw in the lower court’s proceeding would not change the decision, the appellate court is likely to affirm.
If the trial court committed indisputable error, and you cannot argue in good faith that the ruling was proper, it’s probably best to concede the error and assert that the error was harmless. Remember, your goal is to get the appellate court to rely on your brief as a road map to affirmance. If you lose credibility with the court by making a frivolous argument that there was no error when there clearly was, the appellate court may not believe anything else in your brief. If, however, you can make a good-faith argument that the trial court’s ruling was correct, argue that there was no error and that, even if there was, the error was harmless. That way, you give the appellate court two ways to affirm the trial court’s judgment.
Another advantage of being the appellee is that you get to go second during oral argument. That means you get a preview of the issues in which the judge or judges are interested and what they believe are your opponent’s weakest arguments. Unlike your opponent, you get to take the temperature of the judge or appellate panel before you stand up to argue.
During the appellant’s argument, listen closely to the questions asked of your opponent. A good strategy is to start off your argument by addressing whatever question the court asked of appellant’s counsel that is most favorable to you or that the appellant failed to answer to the court’s satisfaction. You can begin: “In response to the court’s question about X. . . .” That way, you know you’re talking about something the judges are interested in and care about.
As the appellee, you should aim to present the appellate court with the most straightforward and compelling reasons to affirm the trial court decision. While you are writing your brief, keep in mind all of the advantages that you have on appeal, and you will increase your chances that the appellate court will affirm the judgment in your favor.
Related content: Sua Sponte: A judge responds to "Making the Best of Being an Appellee."