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Should I appeal?

This office cannot advise you whether or not you should appeal. Generally, that is a personal or business decision for you to make. However, we can advise you whether or not, in our opinion, you have a legitimate issue to be raised on appeal.

It is important to remember that the vast majority of appeals are not successful. Although the statistics vary, approximately 75% to 85% of the appeals resulted in affirming the trial court’s order or judgment. This means that, as a matter of statistics, you only have approximately a 15% to 25% chance of success. The Court of Appeal generally looks for ways to affirm the trial court; it does not look for ways to reverse the trial court’s order. This actually is written into California’s state Constitution:

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.1.)

This means that, not only must the appellant prove the trial court made a legal mistake, but that the mistake harmed the appellant’s position, and a different result probably would have occurred had the trial court not made the mistake. In other words, the appellant also must demonstrate “prejudice.” Although there are some errors in almost all trials because attorneys and judges are human, most errors are not prejudicial.

This does not mean that your appeal will not be successful, however. It does mean that any appeal is an uphill battle. It is our belief that no one can predict with any certainty whether or not any particular appeal will succeed. An appeal is decided by a three-judge panel of justices. The decisions are usually unanimous, meaning all three justices agree. However, sometimes only two justices agree, and the third “dissents.” This means that, if one of the justices had agreed with the dissenting justice, the appeal would have come out differently. This is the same as in the United States Supreme Court when you hear of a “5-4 decision.” This demonstrates that “reasonable minds can differ,” and that, therefore, no one can predict with certainty what the result of any particular appeal will be.

After an initial evaluation, we can advise you whether or not your case presents reasonable basis for an appeal. We cannot provide numerical “odds” of success; we only can give you our best opinion. The final decision always will be up to you.