Frequently Asked Questions About Appeals  

Aaron P. Morris


--- Can I appeal to challenge the amount of the award?

Answer:  Yes, but only after a required post-trial motion. 

I list this FAQ first because in my experience it is the most common mistake made by trial attorneys that attempt to handle their own appeals.  The case law is clear that an appellant cannot challenge excessive damages if no motion for new trial was brought before the trial court. 

We obtained a large judgment against Bank of America, a bank with unlimited resources to spend on trials and appeals.  Bank of America assigned at least six attorneys to the case, and brought motion after motion before and after the verdict.  Yet, with all their Ivy-League credentials, the trial attorneys were not aware of the requirement for a motion for new trial.  They extensively briefed the challenge to the damages, attacking it on several grounds, yet we easily disposed of the appeal by simply citing to the motion requirement.

The importance of this point is not the technical requirement, but how it illustrates the problems that can arise when you use the same counsel on appeal that you used for the trial.  The attorney may have a complete understanding of the rules in trial court, by on appeal an entirely different set of rules applies.  On a monthly basis, we see attorneys failing to properly designate the record (you must create a record for appeal, and if it's not there, the attorney cannot cite to it), using improper formats, and even failing to properly bind the appeal briefs.  The appeal requirements are very precise, down to the size of the font that must be used (13 point).  A page must be included, signed by the attorney, attesting to the fact that the brief does not exceed the word limit (no matter how obvious).  Any technical error can result in a rejected appeal.


--- Can I bring an appeal if the court or jury misunderstood the facts?

Answer:  Yes, if there was error.

It's very upsetting to lose at trial, and wanting to appeal is an understandable reaction.  But so long as you got to tell your side of the story at trial, the Court of Appeal will assume that the judge or jury just did not agree with or believe you.  Conceptually, what you are arguing on appeal is that some error was committed that kept you from properly presenting your case or defense.  Some crucial bit of evidence may have been improperly excluded, or a bad jury instruction may have been given. 

Many think that an appeal is like a second trial.  In fact, on appeal the court will make all reasonable inferences in favor of the verdict.  You don't get to tell your story again and hope for a different result.  This only makes sense, because appeals are decided only on the record.  The three justices that hear the appeal do not have the benefit of seeing the witnesses or judging their credibility.  An appeal is granted when error was committed on he trial level, and the job of your attorney on appeal is to go through the record to find the error.

One exception to all of this involves Labor Board appeals.  If you appeal an award from the Labor Board, the appeal is handled by the Superior Court as a "trial de novo" -- a new trial.  Similarly, there are certain issues on appeal that do not require a determination of credibility, so those are sometimes treated under a de novo review standard.



Aaron Morris is a Partner with the law firm of Morris & Stone, LLP, located in Santa Ana, Orange County, California. He can be reached at (714) 954-0700, or  The practice areas of Morris & Stone include appellate lawemployment law (wrongful termination, sexual harassment, wage/overtime claims), business litigation (breach of contract, trade secret, partnership dissolution, unfair business practices, etc.), real estate and construction disputes, first amendment law, Internet law, discrimination claims, defamation suits, and legal malpractice.



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