The appellate process can be confusing for attorneys accustomed to civil practice in the trial court. Although the following suggestions may seem elementary, these mistakes are repeated often enough to remain on the list of common pitfalls.

1. Make a record in the trial court. As a general rule, the appellate court will not review issues raised for the first time on appeal.
2. Decide whether challenged order or judgment is reviewed by appeal or extraordinary writ.
3. Recognize the presumptions in favor of the trial court judgment or order. These presumptions mean that the appellant is responsible for providing an adequate record that affirmatively demonstrates error.
4. Understand the applicable standards of appellate review. There are three primary standards of review which differ in the amount of deference accorded the trial court: de novo review, abuse of discretion review and substantial evidence review. An appeal that raises multiple issues may involve more than one standard of review.
5. Consider whether the party claiming error was prejudiced by the erroneous ruling. By constitutional mandate, an appellate court may not reverse a judgment on appeal unless, after examining the entire record, it concludes the error resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13.)
6. Comply with California Rules of Court when preparing a brief on appeal. For example, rule 14 requires the opening brief to "provide a summary of the significant facts limited to matters in the record." A one-sided factual summary does not satisfy this rule. Failure to comply with this and other requirements of Rule 14 may result in the appellate court refusing to file the brief, returning the brief for corrections, striking all or part of the brief, or disregarding the noncompliance.
7. Do Not Cite Unpublished Opinions. Although unpublished opinions are available on the Internet and at the court web site, they are not precedent and may not be cited in an appellate brief.
8. Transmit cited exhibits to the appellate court. Trial exhibits are not part of the appellate record unless the parties transmit them to the appellate court. Rule 18 describes the procedure.
9. Prepare for oral argument if you request it. Parties should be thoroughly familiar with the record in order to respond to questions from the panel. They should avoid reading a summary of their briefs. The panel is familiar with the case and time is best spent emphasizing the most important arguments.

RESOURCES: California Rules of Court (available on-line at www.courtinfo.ca.gov). Eisenberg, et al., California Practice Guide: Civil Appeals and Writs (The Rutter Group, 2004). Jessen, California Style Manual (4th ed. 2000). Witkin, Calfornia Procedure (4th ed. 1997), Vol. 8 [Extraordinary Writs] & Vol. 9 [Appeal].

January / February 2006