Skilled, experienced attorneys know that, from the very first meeting with a client, they prepare that case keeping in mind the possibility of an appeal. While such a mind-set might, at first glance, appear to reflect a defeatist attitude, the reality is just the opposite; only by developing the trial record with an eye toward an appeal does the attorney ensure that, if the case is eventually presented to a reviewing court, the record on appeal is sufficient to support whatever arguments the attorney must make to persuade the appellate court to rule in favor of his or her client.
Today, litigants are generally knowledgeable about the trial process itself, thanks to films and television, and they have seen or read details of pre-trial investigation and fact-gathering primarily in criminal cases. Appeals, however, are rarely mentioned, much less depicted in the popular media, so the average litigant, particularly in a family law case, has little if any knowledge of the appellate process itself.
While litigants know generally that a party who files an appeal is asking a reviewing court to change the trial court's decision in his or her case, they may be unaware of the one significant restriction on the appellate court: it cannot consider anything that was not presented to the trial court. The task of the appellate court is not to decide whether the trial court's decision was right or wrong; its task is to assess whether that decision is a sustainable result when the facts presented at the trial through testimony and exhibits are measured against the applicable law. In other words, does the law as applied to the facts presented support the result?
The only thing the appellate court is permitted to work with is the record on appeal—the record made by the parties in front of the trial court. The appellate judges may not consider any facts or arguments not originally considered by the trial court. Whether the individual client is the one who wishes to challenge the trial court's decision (the appellant) or the one who wants the decision affirmed (the appellee), the key is the record on appeal. The task of the appellate attorney, therefore, is to demonstrate that the record on appeal—the facts and exhibits presented and the arguments made concerning the law—supports that attorney's client, whether appellant or appellee.
What is the record on appeal? Basically, it consists of (1) every written document submitted to or entered by the trial judge during the course of the entire case—pleadings, motions, responses, court orders, memoranda of law, and written closing arguments, if any; (2) transcripts of all the testimony and attorney arguments presented to the court during pre-trial hearings and the trial itself; and (3) all the exhibits entered into evidence at pre-trial hearings or the trial itself. The trial attorney's analysis of the case, formulation of the issues to be raised, decisions about the documents and testimony needed for success on each issue, and the gathering, organizing, and presenting that evidence, all contribute to the creation of the necessary record on appeal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
