After trial, sometimes a losing party has so much at stake that an appeal is the only option if settlement cannot be reached.

Many family law lawyers, like other lawyers who litigate, don’t fully understand how different an appeal is from a trial.  They are often timid about asking questions that might reveal the limitations of their knowledge.  However, they need not be.  Effective appellate advocacy requires a unique set of skills that are crafted through extensive appellate practice.  It’s only natural that litigators should have questions about appellate practice and vice versa.

Over the years, I’ve been asked the same question: “What are some of the worst mistakes that trial lawyers make when appealing their domestic relations cases?”  In my experience, I’ve found there are at least ten common mistakes that trial lawyers make on appeal.

1)  Appeal to the Wrong Court or Use of the Wrong Procedure

In Georgia, missing the applicable deadlines to file an appeal is often a fatal mistake.  That’s why understanding the rules of appellate procedure is critical to a successful appeal.  The appellate procedures are vastly different for direct appeals (order or judgment automatically subject to appeal)^[1] and discretionary appeals (appellate court determines whether an appeal can be filed).^[2]  Understanding appellate procedure also requires knowledge of the types of domestic relations cases (divorce, custody, support, etc.) that should be taken to the Georgia Supreme Court versus the Georgia Court of Appeals, which is changing after this year’s legislative session.  Timeliness is also crucial in appellate work.  Lawyers don’t have time to waste by following the wrong appellate procedure or filing their cases in the wrong courts.  These mistakes can easily cost clients their appeals.

2)  Fail to Correctly Analyze an Appeal

Evaluating an appeal ultimately requires an understanding of the differences between the appellate process and trial proceedings.  An appellate court is only a court for review and correction of error committed in the trial court.  The appellate court answers a two-fold question: (1) did the trial court correctly apply the law to the facts presented when deciding the case below, and (2) if not, is the appellant entitled to have the trial court’s judgment reversed, vacated, remanded or amended in some way?  Consequently, an appeal is not a second trial.  The appellate court isn’t reviewing new evidence or hearing live testimony.  It only reviews the written record that was generated during the proceedings in the trial court.

In order to win on appeal a litigant must show (1) the trial court made a legal error, (2) that was prejudicial, (3) which was preserved below, (4) as established in the record.  Although demonstrating these elements may be seemingly easy, winning on appeal is often an uphill battle. When evaluating whether an appeal is in the client’s best interest, it’s important to consider the following:

1. Preservation of Error — Was the issue for appeal initially raised in the trial court? Issues and objections not raised and ruled upon by the trial court are waived and can’t be raised for the first time on appeal.^[3]

2. Harmless Error — The appellate court won’t disturb a trial court’s finding based on error that is not prejudicial.

3. Standard of Review — Determines the amount of deference that will be given to the trial court’s decision.

4. Risk of Creating Bad Precedent — Does the litigant want to create binding precedent in a disputed area of the law?

5. Possibility of Frivolous Appeal — An appellant as well as the attorney of record can be assessed penalties for filing an appeal that has no merit.^[4]

3)  Overestimate the Odds and Underestimate the Costs

Fueled by the client’s need to win and a desire to achieve a positive outcome, many trial attorneys are often less than pragmatic when it comes to gauging their chances of success on appeal.  Statistics tell us the chances of success, in either Georgia’s Court of Appeals or Supreme Court, are relatively low.  In 2015, the Georgia Court of Appeals affirmed approximately 42% of its civil cases.^[5]  The Georgia Supreme Court, in 2015, granted less than 9% of petitions for certiorari and only granted 9 discretionary applications for appeal.^[6]

Trial attorneys also underestimate the costs of an appeal.  Attorney fees are not the only monetary dispensation to be taken into account.  Other costs to consider include hearing transcripts and record preparation, which can cost thousands of dollars.  There are nonmonetary costs as well including the protracted time, investment, and continued emotional stress of a legal dispute.  It generally takes six to eight months, after a case is docketed, for a decision to be reached on appeal.

Before assuring a client that an appeal is the best option, the likelihood of success and the costs of an appeal must certainly be weighed against any potential gains that could be made.

4)  Frame the Issues Incorrectly

On appeal, the focus shifts to framing the issues that were preserved in the trial court.  Knowing how to frame appellate issues and maximizing your client’s position on paper can mean the difference between winning and losing.  Remember, your primary mode of advocacy at the appellate stage is written word, so just as in a trial, word phrasing is crucial.  The way the arguments are framed in the brief will shape the way the appellate judges view your case.  When writing an appellate brief, the drafter should keep the following in mind:

1. Include the proper standard of review;

2. Enumerations of error should be clear and concise;

3. Develop a statement of relevant facts that will tell a compelling story;

4. Frame the legal issues from the client’s perspective;

5. Write persuasively — The goal is for the court to agree with your arguments and make them its decision;

6. Tell the court why it’s important for your client to prevail;

7. Write in plain English — Judges don’t want to look up every other word in your brief; and

8. Make your client’s position simple and easy to understand — Appellate judges are generalists and need to understand your client’s position very quickly without the benefit of your expertise and knowledge in the matter.

5)  Raise Too Many Points of Error

Surprisingly, a lot of lawyers brief every argument they have with the assumption that a greater number of arguments will make the court more likely to rule in their favor.  This assumption is wrong!  Avoid the kitchen sink approach.  It makes for a bad brief.  A laundry list of arguments will dilute the power of and distract from your most compelling arguments.  Choose two or three of your strongest points of error and brief those.

6)  Make Jury Arguments

By far, the most common criticism I’ve heard from judges is that too many trial lawyers, handling domestic relations appeals, make jury arguments to appellate judges.  Don’t do that. 

While juries are persuaded by facts, appellate courts focus on the law, really and truly!  A trial attorney often makes the mistake of using an appeal as a second chance to argue the case.  You waste your time making impassioned pleas about the facts of the case instead of focusing on the legal issues and emphasizing the application of the law to facts in the record.

If a case reaches oral argument, the court has read the briefs and is using the oral argument to ask questions and address concerns about the case.  At that point, a lawyer must be well versed in the case law at issue and able to explain how and/or why the law is or is not applicable to the set of facts before the court.  Accordingly, a compelling jury argument, heavy laden with emotional facts, will be ineffective before the appellate court.

7)  Forget to Cite to the Record

Always, always, always cite to the record.  There must be a corresponding record citation for each fact included in the appellate brief.^[7]  “It is not an [appellate court’s] job to cull the record on behalf of a party.”^[8]  Failure to cite to the record gives the court discretion to dismiss an appeal.^[9]  Even if decided, a lack of citations can cost your client an appeal.^[10]  Your position loses credibility with the court when the opposition’s brief is replete with record citations that support their position and your brief has none.

When making citations do not misrepresent the record.  Cite it accurately.  For instance, if there is a distinction in the record that contravenes your argument, recognize it.  Don’t cite the record as if it solely supports your argument.  You don’t want to lose credibility with the court through the use of misleading statements.

8)  Skimp on Analysis

Trial lawyers don’t always put sufficient emphasis on legal analysis.  While an appellate brief should be short and concise, it must also be thorough.  The argument and citation of authorities section is the crux of the entire brief.  This is where the majority of drafting time should be spent.  I’ve noticed that many lawyers rush over this section including only facts, a number of case citations and a conclusion.  There is no real analysis, applying the law to the particular issue, to create a roadmap that leads the court to a reasoned conclusion.  Skimping on the legal analysis is a huge mistake and the court isn’t going to do the work for you.  Spend time on the legal analysis.  It provides the logical impetus for the court to rule in your favor.

9)  Fail to Argue the “Equities”

Many lawyers will argue why the rules of law, that support their positions, are technically correct, but overlook any discussion about how these rules would be good for future cases or posit the right outcome.  Appellate judges are very conscious of the fact that their decisions affect people’s lives.  They are not only interested in the espoused rule of law, as it relates to your case, but also want to understand why the rule would be good precedent to set for future cases.  An experienced appellate advocate will try to convince the court that ruling in his or her client’s favor is not only correct under the law, but is also “the right thing to do” for all Georgians.

Appellees should be making policy arguments as well.  In addition to arguing that the appellant’s position is not supported by case law, the appellee should also explain why a ruling in the appellant’s favor would set bad precedent for future courts and litigants.

10)  Select the Wrong Counsel at the Wrong Time

There is a general presumption the attorney at trial is automatically in the best position to represent a client on appeal since the trial attorney is most knowledgeable about the case.  However, this presumption is not always true.  Appellate advocacy requires a different skill set and knowledge base than litigation.  Consequently, a trial lawyer, even a good one, isn’t automatically a qualified appellate advocate.

Strategic planning from the outset of a case is the key to winning an appeal.  From the initial stages of litigation through trial, attorneys must think about how their decisions will impact a future appeal.  If resources permit, appellate counsel should be hired in the earlier stages of litigation.  Appellate counsel can assist not only with trial, but with pre-trial motions which are also a prime source of appellate issues.  An appellate expert can put a client in the best position to have an appealable record if an outcome is unfavorable.  Hiring an appellate lawyer, only when a case is ripe for appeal, is often too late.

Conclusion

Of course, this is not an exhaustive list of errors made on appeal.  Appellees and appellants, unaccustomed to appellate practice, are potentially subject to numerous traps and pitfalls.

So, what should a trial lawyer to do?  Be proactive!  If you know you have a case that might be appealed and your client has the resources, consider pairing up with someone who has appellate practice experience and will look at your case from a fresh perspective.  After all, committing any one of the above errors could cost your client an appeal.

_{[1] O.C.G.A. § 5-6-34 (2015).}

_{[2] O.C.G.A. § 5-6-35 (2015).}

_{[3]  City of Dalton v. Smith, 210 Ga. App. 858 (1993).}

_{[4]  Ga. S. Ct. R. 6; Ga. Ct. App. R. 15(b).}

_{[5] Caseload Statistics, Court of Appeals of Georgia, http://www.gaappeals.us/stats/dispositions.php.}

_{[6] Granted and Denied Petitions, Supreme Court of Georgia, available at www.gasupreme.us/granted-denied-petitions; Granted Applications, Supreme Court of Georgia, available at  www.gasupreme.us/applications.}

_{[7] Ga. S. Ct. R. 19, 22; Ga. Ct. App. R. 25(a)(1), (c)(2)(iii).}

_{[8] Westmoreland v. State, 287 Ga. 688, 696 (2010) (quoting Luong v. Tran, 280 Ga. App. 15, 16 (2006)); Ware v. Multibank 2009-1 RES-ADC Venture, LLC, 327 Ga. App. 245 (2014).}

_{[9] Ga. Ct. App. R. 7.}

_{[10] See Westmoreland, 287 Ga. at 696; Jenkins v. Sallie Mae, Inc., 286 Ga. App. 502 (2007).}