Appellate law is generally concerned with litigating a review of a trial court's legal errors.  This differs from advocacy at the trial level where factual persuasion is of utmost importance.  That is, appellate courts do not retry or decide again the facts of a case.

To illustrate, let us say there is a trial and 5 witness all nuns and priests testify that the traffic light was green. Just one witness, however, testifies that the traffic light was red.  Moreover, that witness further testifies he has been convicted for perjury and he was drunk at the time he was looking at the traffic light. The jury believes that witness over the nuns and priest and concludes the traffic light was red.  Many could make a strong argument that the jury was wrong Nevertheless, an appellate court would not get involved in weighing the evidence again.  That is, rehashing the facts or reevaluating  the credibility of witnesses.

On the other hand, let's say the judge instructed the jurors that if they conclude that the traffic light were red then they must find for the plaintiff. The jury then finds for plaintiff.   Let's further say that the actual rule of law was that the jury would have to conclude the traffic light was green to find for the plaintiff.  Then in all likelihood, an appellate court would overrule the trial court for that legal error of instructing the jury as to the wrong rule of law.

This is an oversimplified example. Nevertheless, it does show the great difference between advocacy at the trial level and the appellate level.  The main thing to remember if you become involved in litigation, is do NOT delay to file for an appeal. Most likely, your trial lawyer will be advising you regarding an appeal. Typically though it is a matter of 60 days, not many months or years, that you have to make the decision to file an appeal or not. At times though, even a delay of one day can put a party at a disadvantage.

During the past 24 years I have successfully represented clients in the California Court of Appeal. Though, with candor, I was r eversed once. While I was being less than happy,  other lawyers told me that my novel argument was good. It had won at trial. That was much better than losing at trial, taking it up on appeal and losing again. Still not convinced, an old timer reminded that in those thousands of volumes of case books, with millions cases, every case had a loser.  Something every client should keep in mind before spending the thousands of dollars an appeal can typically cost.

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Law Office of Frank D. Presto III                                 E-Mail: Frank@PrestoLaw.com
4471 Stoneridge Drive, Suite B
Pleasanton, CA  94588
Telephone: 925-846-4006
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