An appellate attorney knows that in an appellate brief, how you choose to frame the appellate issues is incredibly important. In framing the appellate issues, you are setting forth the parameters of the legal battlefield. It is your job to establish the errors at trial that greatly prejudiced your client. Don’t be overly objective or too legalistic in framing the issues. Your job is to win the case for your client, and consequently frame the issues from his or her legal perspective. Also, do not make the issues overly complicated.
Just as important, is to set the proper standard of review for which a judge forms his decision. That is, there are essentially two legal standards in the appellate world – abuse of discretion and de novo review. The abuse of discretion standard essentially asks whether a judge, within a wide latitude of judgment, properly exercised his discretion. The de novo standard asks whether a judge simply applied the correct law.
In dealing with an abuse of discretion appeal, the appellate court will give great deference to the trial court. A reversal requires a judicial act of egregious proportions. A de novo appeal, on the other hand, simply asks whether a judge was right or wrong in making his decision.
For instance, in State X, a plaintiff must file a motion to dismiss within 60 days of the filing of the initial lawsuit – no exceptions are permitted. The judge finds the lawsuit absolutely frivolous, and entertains a motion filed 95 days after the filing of the initial suit. Subsequently, the motion to dismiss is granted. You correctly argue that the de novo standard of review applies by simply explaining that the defendant failed to file the motion to dismiss within the correct time frame. You also correctly explain that the trial court judge had no discretion to extend the deadline date. The judge applied the law wrong, and applying the de novo standard of review, a reversal is required.
In contrast, let us say a judge allows gruesome photographs at trial of a car accident in which the plaintiff’s left arm is severed and blood is splattered everywhere. You argue the photographs will prejudice the jury. You acknowledge the accident did occur, but that the plaintiff was speeding and that the plaintiff was the proximate cause of the accident – not your client. In any event, the judge allows these game changing photos into evidence. You would need to prove this was an egregious error in order for a reversal to take place in the appellate court. This is a tough hurdle to overcome.
Many trial attorneys when arguing an abuse of discretion appeal will use trial tactics in an attempt to persuade an appellate court to grant a reversal. A trial court attorney will vociferously go into detail on what these photographs depicted. The trial attorney will note that two jurors asked to go to the bathroom after the pictures were introduced into evidence. Essentially, the trial court attorney will make a very powerful argument that the photographs greatly prejudiced the jury and that this was an abuse of the trial court’s discretion. Unfortunately, this argument will lose most of the time.
The key here is to frame the legal issue in the correct manner. You want to make sure that the introduction of the photographs is reviewed under the de novo standard of review. How do you do that when in most instances the introduction of evidence is reviewed under the abuse of discretion standard? Well, you need to do a lot of research and frame the issues properly. After 50 hours of legal research, you find a case entirely on point. The case holds that where the defendant claims no liability, the introduction of gruesome photographs is not permitted. You then frame the issue as follows: The Trial Court did not correctly apply the law in allowing gruesome photographs at trial whereas this court has clearly held that emotionally evocative photographs cannot be introduced at trial in instances where contributory negligence is alleged. You just took away the trial court’s discretion and now have your opponent on the defensive. This was simply done by correctly framing the argument.
In laymen’s terms, you hear that a neighbor was arrested for disciplining his child. Under the abuse of discretion standard, the issue would be framed that a parent has the right to discipline a child. However, in applying a de novo standard of review, the issue would be framed that no parent has the right to hit his child with a belt buckle 47 times causing severe bleeding and scars. As you can see, how the issues are framed defines the battleground on appeal.