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Winning Your Appeal at the Trial Court Level: Jury Instructions

Winning Your Appeal at the Trial Court Level:

 

Jury Instructions

 

A particular jury instruction is waived if there is not a timely request for it. Also, when dealing with jury instructions, make sure the record is clear as to who requested each instruction. It is important that the record reflects whether any instructions were withdrawn, and who withdrew it, so that you can avoid any adverse presumption from the absence of a particular instruction. (Connor v. Pacific Greyhound Lines (1951) 104 Cal.App.2d 746, 758; Gong v. Firemen’s Insurance Co. (1962) 202 Cal.App.2d 686, 695.) Read more

Winning Your Appeal at the Trial Court Level: Motion for New Trial

Winning Your Appeal at the Trial Court Level:

 

Post-Trial

Motion for New Trial

 

You must file a motion for new trial in order to preserve certain issues for appeal. For instance, you can only make the argument on appeal that the damage award was excessive or inadequate by first filing a motion for new trial. If you do not, you waive the issue on appeal. (Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918-919.) Read more

Winning Your Appeal at the Trial Court Level: Law & Motion

Winning Your Appeal at the Trial Court Level:

 

Law & Motion

 

All motions must be supported by evidence. Statements of facts in a points and authorities will be ignored by the court of appeal unless supported by declaration. (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573; Owens v. Intertec Design, Inc. (1995) 38 Cal.App.4th 72.) With respect to motions for summary judgment, the separate statement must refer to admissible evidence. (Thrifty Oil Co. v. Superior Court (2001) 91 Cal.App.4th 1070, 1075, fn. 4.)

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Winning Your Appeal at the Trial Court Level: “Statement of Decision”

Winning Your Appeal at the Trial Court Level:

 

Post-Trial

“Statement of Decision”

 

Request a statement of decision. “The statement of decision provides a record of the court’s reasoning on particular disputed issues which we may review in determining whether its decision is supported by the evidence and the law.” (Gavaldon v. Daimler Chrysler Corp. (2002) 95 Cal.App.4th 544, 553.) Absent a statement of decision, the appellate court presumes that all facts were found against appellant. (Marriage of Arceneaux (1991) 51 C3d 1030, 1035; Cal. Civ. Proc. §634.) Read more

Winning Your Appeal at the Trial Court Level: Make a Record

Winning Your Appeal at the Trial Court Level:

 

Make a Record

 

“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.” (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)

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Winning Your Appeal at the Trial Court Level: Verdicts

Winning Your Appeal at the Trial Court Level:

 

Verdicts

 

Like virtually everything else at trial, if you do not request a special verdict form or object, on the record, to the opposing party’s special verdict form, you will be waiving the issue on appeal. “ ‘Parties should have one chance (by request for special verdict forms) to have a jury’s fact finding pinpointed.’ [Appellant] was apparently satisfied with the pinpointing form of this first interrogatory at the trial of the cause – the record is devoid of any showing that he objected thereto …” (Babcock v. Omansky (1973) 31 Cal.App.3d 625, 630.) Read more