Persuading the Court of Appeals

How does the Court of Appeals understand its job on review?

In theory, how the Court of Appeals defines its job in a particular case should depend on the interplay between the “scope of review” and the applicable “standard of review.”  Roughly, the scope of review establishes the set of issues before the court, and the standard of review establishes the criteria that are applied in reviewing an issue within that set.  Different issues within the scope of review are commonly subject to different standards of review.

Scope of Review:  The scope of the review undertaken by the court of appeals is governed by RAP 2.4, RAP 2.5, and RAP 10.3(a)(4).    Generally, the party seeking review has the burden of informing the Court of Appeals which parts of the decision it believes are erroneous.  The appellant begins this process by listing the decisions it wishes to have reviewed in the Notice of Appeal or the Notice for Discretionary Review.  RAP 2.4(a).  Seeking review of orders on certain timely posttrial motions will automatically bring up the final judgment for review, even if the final judgment was not designated in the Notice.  RAP 2.4(c).  Moreover, if the party seeking review fails to designate a trial court order or ruling in its Notice, the Court of Appeals will review it if “(1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review.”  RAP 2.4(b).  This expansion of the scope of review is undercut by the express qualification that an appeal of a decision relating to attorney fees and costs does not bring up for review a previously entered final judgment (appeal from a final judgment, however, does bring up a subsequent award of attorney fees—compare RAP 2.4(b) and 2.4(g)).

The appellant’s burden of alerting the Court of Appeals to assignments of error and issues that correspond to them also shapes the appellant’s opening brief.  RAP 10.3(a)(4).  Appellant’s failure to make proper assignments of error in its opening brief can lead the Court of Appeals to refuse to consider the alleged errors, although the Court may excuse compliance with this rule where “the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the court is not greatly inconvenienced and the respondent is not prejudiced.”[1]

Standards of ReviewThe applicable standard of review tells the court whether it is scrutinizing the record on an issue within the scope of review with completely fresh eyes (“de novo” review), or is instead granting some degree of deference to the trial court’s decision.   Case law and statutes determine that different types of decision below are subject to different standards of review.  The table below summarizes the standard of review for a few important types of trial court decisions in civil matters.  Of course, one appeal may bring up multiple issues each subject to a different standard of review.

Type of Trial Court Decision Standard of Review applied Source Comment
       
Grant of summary judgment De novo (but see discussion of injunctive relief below)

 

Note:  a ruling denying summary judgment is not reviewable as a matter of right.

 

Note:  a grant of partial summary judgment is only reviewable pursuant to RAP 2.2(d) and CR 54(b).

Washington Imaging Services, LLC v. Washington State Dept. of Revenue,  171 Wn.2d 548, 555, 252 P.3d 885 (2011). This is the most favorable standard of review for appellants.  At least in theory, the Court of Appeals gives no deference to the trial court’s decision.  Based on the same record presented to the trial court, the Court of Appeals makes its own decision as to whether there are genuine issues of material fact that prevent summary judgment.  It also makes its own decision as to whether the moving party was entitled to judgment as a matter of law.  The trial court’s decision can be affirmed on the basis of any argument supported by the record.
       
Dismissal under CR 12(b)(6) De novo Citizens for Rational Shoreline Planning v. Whatcom County,
— P.3d —-, 2011 WL 3612312
 
       
Denial of motion to compel arbitration De novo Otis Housing Ass’n v. Ha, 165 Wn.2d 582, 586–87, 201 P.3d 309 (2009)  
       
Final Judgment with findings of fact and conclusions of law. Findings of fact are reviewed for “substantial evidence;” conclusions of law are reviewed “de novo.”  Rainier View Court Homeowners Ass’n, Inc. v. Zenker, 157 Wn.App. 710, 719, 238 P.3d 1217 (2010). “Substantial evidence” is evidence which would convince a reasonable person of the truth of the matter asserted.  This is a deferential standard, because the court of appeals does not have to agree with the trial court’s (or jury’s) conclusions of fact to affirm.  It just has to believe that those conclusions are not unreasonable.  If there is conflicting evidence in the record on a point, the record is reviewed in the light most favorable to the party in whose favor the findings were entered.  In re Marriage of Gillespie, 89 Wn. App. 390, 948 P.2d 1338 (1997).
       
Amount of damages awarded by jury Substantial evidence.

 

But note that a judge’s denial of a motion for remittitur is reviewed for abuse of discretion.  If remittitur is granted, but the party which benefits from remittitur nonetheless appeals, the grant of remittitur is reviewed de novo as per  RCW 4.76.030.

Collins v. Clark County Fire Dist. No. 5,
155 Wn. App. 48, 231 P.3d 1211 (2010)
 
       
Decisions in marital dissolution actions regarding division of property, child support, and residential placement of child Abuse of discretion Pollock v. Pollock, 7 Wn. App. 394, 399, 407, 499 P.2d 231 (1972); In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993); In re Marriage of Foley, 84 Wn. App. 839, 842-43, 846, 930 P.2d 929 (1997)  
       
Evidentiary rulings (i.e., allowing or prohibiting testimony or evidence) Abuse of discretion Univ. of Wash. Med. Ctr. v. Wash. Dep’t of Health, 164 Wn.2d 95, 104, 187 P.3d 243 (2008). A trial court abuses its discretion when the ruling is “manifestly unreasonable or based upon untenable grounds or reasons.” An error is harmless, and will not lead to reversal, if it is “trivial, or formal, or merely academic, and was not prejudicial to the substantial rights of the party assigning it, and in no way affected the final outcome of the case.” Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 311, 898 P.2d 284 (1995).
       
Injunctive relief Abuse of discretion Brown v. Voss, 105 Wn.2d 366, 372-73, 715 P.2d 514 (1986).

 

Example:  an order of specific performance is reviewed for abuse of discretion, even if it is issued at summary judgment:  Cornish College of the Arts v. 1000 Virginia Ltd. Partnership,
158 Wn. App. 203, 221 n. 10, 242 P.3d 1 2010).  This is an area where the law may continue to develop.

 
       
Attorney’s fee award Abuse of discretion Progressive Animal Welfare Soc. v. Univ. of Wash., 114 Wn.2d 677, 688, 790 P.2d 604 (1990).  
       
Rule 11 Sanctions Abuse of discretion Biggs v. Vail, 124 Wash.2d 193, 197, 876 P.2d 448 (1994)  

 

How does the Court of Appeals apply the “substantial evidence” standard of review to factual findings that had to be established by “clear, cogent, and convincing” evidence at trial?

The standard burden of proof in civil trials is by a preponderance of the evidence.  However, there are a number of factual issues that must be established by “clear, cogent, and convincing evidence,” including fraud, undue influence in making a will, and the best interest of the children and parental failure to perform duties in termination matters.[2]   Once a trial court makes such findings, the court of appeals reviews them—like all other findings of fact—for “substantial evidence.” [3] However, the state Supreme Court has noted that when facts “must be established by clear, cogent and convincing evidence . . . the question to be resolved [on review] is not merely whether there is ‘substantial evidence to support the trial court’s determination of the factual issue but whether there is substantial evidence to support such findings in light of the highly probable test.”[4]  As a respected commentary puts it, there is “considerable ambivalence” in published opinions as to how (or even whether) this heightened “substantial evidence” standard is applied.[5]  Although the Supreme Court’s language seems fairly clear at first glance, at least one division of the Court of Appeals has argued that any heightening of the “substantial evidence” standard is incompatible with the prohibition on Courts of Appeals evaluating credibility or weighing evidence.[6]  Since this continues to be an unsettled area of law, Appellants who need to challenge findings of fact that had to be proven by “clear, cogent, and convincing evidence” may find it worthwhile to develop arguments supporting a stricter standard of review.

Will the Court of Appeals consider new evidence on appeal?

The Court of Appeals in theory has the power to order the trial court to consider new evidence before it renders a decision. RAP 9.11.    However, this power is applied very sparingly.  Six criteria must be met before the trial court will order the taking of new evidence.  Generally, if a party or its attorney could have presented the “new” evidence at trial, but failed to do so through no fault of the opposing party, the Court of Appeals will not consider or order the consideration of new evidence.  In practice, this means that the Court of Appeals almost always reviews the same evidentiary record as was available to the trial court.

Will the Court of Appeals revisit a trial court’s decisions about witness credibility?

No.   The “[c]redibility of parties and witnesses, and the weight to be given to evidence, is for the trial court.”[7]    If your case on appeal depends on convincing the Court of Appeals that the trial court made the wrong choice about which live testimony to believe, save your (or your client’s) money, and don’t appeal.

Even if the only evidence bearing on an issue takes the form of affidavits or declarations, the Court of Appeals will defer to the trial court’s credibility determinations.    See, e.g., In re  Marriage of Rideout, 150 Wn.2d 337, 351-52, 77 P.3d 1174 (2003) (applying substantial evidence review to trial court’s determination in family law matter based on warring affidavits submitted by ex-spouses); and Dolan v. King County,—P.3d—, 2011 WL 3612148 (Wa. 2011) (holding that “where competing documentary evidence must be weighed and issues of credibility resolved, the substantial evidence standard is appropriate”).

Will the Court of Appeals consider new arguments on appeal?

Under RAP 2.5(a), “the appellate court may refuse to review any claim of error which was not raised in the trial court” (italicized emphasis added).  What is the relationship between a “claim of error,” an “argument,” and “authority”?  Clearly “[t]here is no rule preventing an appellate court from considering case law [or other “authority”] not presented at the trial court level.”[8]  Indeed, RAP 10.8 allows a party to file a “statement of additional authorities” at any time prior to the decision on the merits, and surely such a statement may include authorities not cited to the trial court.  What about new “arguments” in support of a previously claimed error?  The case law seems to be rather hostile toward allowing new theories or contentions in support of reversal, even if they can be construed as supporting a more general “claim of error” that was raised below.[9]   However,  the court of appeals has the discretion to either reject or consider claims of error that were not raised below, and it does not commit error by doing either.[10]  Moreover, a party has the right to raise the following claims of error for the first time on appeal:  “(1) lack of trial court jurisdiction; (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right.”  RAP 2.5(a).  Finally, there is an asymmetry between new arguments offered for reversal (generally frowned upon), and new arguments offered to support the trial court’s ruling:  “[a] party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground.”  RAP 2.5(a).

 

Tips for writing persuasive briefs.

  • Read and follow RAPs 10.3 (“Content of Brief”) and 10.4 (“Preparation and Filing of Brief”).  These rules dictate the overall structure of the briefs, and prescribe format and citation requirements.  Of particular importance for setting the right tone for an opening brief is the requirement that it provide “a fair statement of the facts . . . without argument.”  RAP 10.3(a)(5) (emphasis added).
  • For an appellant’s opening brief, focus on errors of the trial court, as opposed to errors by respondent.   The Court of Appeals is reviewing the decision made by the trial court, not the arguments made by the respondent below.  To win, the appellant needs to show that the trial court erred—it does no good to show that respondent made bad arguments unless the trial court adopted them.
  • For respondent’s opening brief, and for appellant’s reply brief, it is acceptable and effective to point out errors made by the opposing party in a preceding brief.  For respondents, however, the ultimate goal is to show that the trial court was right, not that the appellant is wrong.   And in an appellant’s reply brief, the bottom line remains showing that the trial courtwas wrong in a way that requires reversal.
  • Do not assume that the Court of Appeals will become emotionally involved on your side of the case.  It is common sense that judges at all levels would be overwhelmed if they routinely became emotionally invested in the cases before them.  The best way for a judge to avoid the stress caused by making hundreds of emotional commitments each year is to look hard for a dispassionate legal and/or logical approach to a case. The party that offers the most direct and persuasive path to resolution of the case based on the law has a huge advantage.   Of course if the law on a particular point is unclear, an argument about fairness (couched as necessary as an argument about legislative intent or public policy) can be critical.  Generally, however, attempted tugs at the heartstrings are best relegated to a secondary role, supporting or possibly framing the main legal argument.
  • Do not waste your client’s credibility by making bad arguments.  If you make sloppy or unsupported claims, you can’t complain if the Court of Appeals becomes annoyed.  That annoyance may translate into an unwillingness to read your good arguments in the favorable light they need to carry the day.  If you only have bad arguments,  consider if you can ethically proceed with the representation in light of CR 11 and RAP 18.9(a) (if your definition of “bad argument” coincides with the court’s definition of “frivolous,” you should definitely not proceed).

 

Does oral argument matter?

 

Oral argument gives the judges their one chance to associate live people with the arguments made in the briefs.   Do not waste your chance to give your case an appealing personal face.  If you can offer persuasive answers to the judge’s questions while coming across as professional and polite, it may tip a close case in your client’s favor.  Conversely, appearing confused or—worse—being rude may alienate judges whom the briefs left sitting on the fence.     The heavy lifting in your argument, however, has to be done in the briefs.

 

Still have questions?

Call me at 253-414-5235 or email me at david@davidcorbettlaw.com



[1] See State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1990).  See also RAP 10.3(g) (stating that “[t]he appellate court will only review a claimed error which is included in an assignment of error or clearly disclosed in the associated issue pertaining thereto”).

[2]A more complete list of factual issues subject to the “clear, cogent, and convincing” burden of proof is offered by 5 Wash. Prac., Evidence Law and Practice § 301.3 (5th ed.).

[3] In the Matter of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973).

[4] Id.

[5] 5 Wash. Prac., Evidence Law and Practice § 301.3 (5th ed.).  See also 21 Wash. Prac., Family And Community Prop. Law, § 51.29

[6] In re Welfare of Ott, 37 Wn. App. 234, 237 n. 2, 679 P.2d 372 (1984).

[7] Brauhn v. Brauhn, 10 Wn. App. 592, 593, 518 P.2d 1089 (1974).

[8] See also  Walla Walla County Fire Protection Dist. No. 5 v. Washington Auto Carriage, Inc., 50 Wn. App. 355, 357 n. 1,  745 P.2d 1332 (1987) (noting that “[t]here is no rule preventing an appellate court from considering case law not presented at the trial court level”).

[9] See, e.g., Green v. Normandy Park, 137 Wn. App. 665, 687, 151 P.3d 1038 (2007).

[10]See, e.g., Bennett v. Hardy, 113 Wn.2d 912, 918-19, 784 P.2d 1258 (1990).  The author believes that there is a particularly compelling argument for using this discretion to consider new arguments (or even new “claims of error”) when the reason the argument was not made below may have been due to a conflict of interest by trial counsel.  This situation may arise when the trial court imposes CR 11 sanctions on a represented party, and trial counsel does not argue that he or she should bear sole liability for the sanction.  See, e.g., White v. General Motors Corp., 908 F.2d 675, 687 (10th Cir. 1990) (noting that “[t]here is an obvious conflict of interest between [plaintiffs], on the one hand, and their counsel, on the other, on the issue of who should be liable for the sanctions imposed by the district court” and considering the issue sua sponte even though it was neither briefed for the appeals court nor raised in the trial court).  See also Calloway v. The Marvel Entertainment Group, 854 F.2d 1452, 1456 (2nd Cir. 1988)) (noting that the attorney and his firm representing Calloway “had a blatant conflict of interest and should have withdrawn as Calloway’s counsel in defending the motions for sanctions.  Because of this representation, no argument was made on Calloway’s behalf that [the attorney] was solely responsible for pursuit of the [unfounded] claim . . . . Nor was an argument made that even if sanctions should be imposed on Calloway, [the attorney] and his firm should be jointly and severally liable for them,” and raising this issue sua sponte on appeal).  Washington appellate courts have not yet ruled on this issue.