An appeal is not the place for a do-over

By Patrick Carrick

There is no substitute for winning in the trial court.

People who are unfamiliar with the appellate process frequently make the mistake of assuming that they will be able to achieve a kind of do-over by appealing an adverse judgment. This idea, while certainly understandable, is incorrect for a host of reasons. Although there are exceptions or special cases for just about every point below, these are, generally speaking, the reasons why do-overs are very rare.

An appellate court is not interested in revisiting the factual findings of the trial court or jury. This is embedded in the substantial evidence rule: a fact found in the trial court will not be overturned if there is “substantial evidence” to support it. Substantial evidence doesn’t mean “any evidence at all,” but it does effectively mean that most factual findings by the trial court or the jury are likely to be accepted as true by the appellate court. Relevant evidence can be considered substantial even though there is more and better evidence to the contrary. This is so in large part because an appellate court cannot judge the credibility of the witnesses. Only when the evidence does not conflict, and the only question is what is its legal effect, will the court of appeal be free to substitute its judgment for that of the trial court or jury.

This leads to a second reason why a do-over is generally impossible. In reviewing the case, the appellate court confines itself to the written record of the proceedings below. If something didn’t happen in the written record, as far as the court is concerned, it didn’t happen at all.

The role of an appellate court is to correct legal errors; errors in reading and applying the law or interpreting the words of a written contract when there is no conflicting evidence of meaning. Even here, the appellate court’s role is more limited that one might think.

An appellate court will generally limit itself to issues that are raised in the parties’ initial appellate briefs and properly supported by citations to the record and legal arguments; it won’t search for errors on its own.

An appellate court generally will not correct a legal error if the complaining party could have objected to it in the trial court but failed to do so. This is particularly true where relevant but inadmissible evidence was considered by the trial court or jury. An evidentiary objection not made in the trial court cannot be raised in the court of appeal.

And even where the appellate court decides that a legal error has been committed, or that there is no substantial evidence to support a factual finding, the judgment will still be affirmed if the court determines that the complaining party was not prejudiced by the error. In simplistic terms, prejudice means that the end result would likely have been different and more favorable to the complaining party if the error had not occurred.

Finally, if the appellate court determines that a prejudicial error was committed, it will in the vast majority of cases vacate or reverse the judgment and send the case back to the trial court with instructions to take specific steps to correct the error or to conduct a new trial. Even if the court requires a new trial, the trial may be limited to the specific issue that caused the reversal, such as the amount of damages, rather than a complete do-over.

When a party’s case goes wrong in the trial court, the party and his or her attorney must carefully weigh the limits of what an appeal can do for them. Appeals can be very expensive and depending on the case may not be worth the expense.