An Appeal to Reason by Donna Bader

One of the biggest mistakes that trial attorneys make is viewing the appeal as a second bite of the apple. The appellate court is not the forum for retrying questions of fact or reweighing the evidence. (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791.) For instance, if a client or the attorney insists, “the witness lied on the stand” or “we had better evidence than they did,” I know the client is seeking to retry the case, especially on questions of fact, and credibility is a major factor. But the court of appeal is not in the position to determine if someone is lying or telling the truth except, of course, if the lies are obvious from other evidence. (Marriage of Balcof (2006) 141 Cal.App.4^th 1509, 1531.)

Another frequent area of concern by parties is where the lower court has stated, usually in an order or statement of decision, that the party’s testimony lacks credibility. No one wants to have a public record made of a judicial officer’s conclusions about the veracity of a party. Unfortunately, that finding is reduced to a written communication to the court of appeal of the lower court’s impressions of the demeanor and truthfulness of a witness. It is a difficult label to overcome, especially when the court of appeal may never lay its collective eyes on the witness while the trial court was situated only a few feet away.

Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity as to why clients failed to show up for oral argument when the court’s decision could have a huge impact on their lives.