Appellate Insights

GMSR’s monthly appellate insights offer concise, timely guidance on appellate issues, and tips for avoiding common pitfalls at all stages of litigation.

Jun 13, 2018 Laurie J. Hepler
Briefs In The Wild

It’s always been true that appeals can make common law, so that litigants must vet their arguments with that prospect in mind.  But in the era of Big Data, consider also that appeals leave an electronic “trail”—with briefs routinely uploaded to Westlaw, often posted on

May 15, 2018 Alana H. Rotter
Last Chance

Lawyers who’ve just lost a jury trial often ask whether they need to file a new trial motion before appealing.  The answer is case-specific, but there are a few arguments that should almost always be raised via a new trial motion if the record supports

Apr 12, 2018 Laurie J. Hepler
Finish Strong

Every appellate opinion must have a “disposition,” in which the court formally resolves the appeal.  Sometimes the disposition is a final judgment for one side, whether affirming or reversing the judgment below.  But many times, the court directs further proceedings on remand to the trial

Mar 14, 2018 Alana H. Rotter
Prove it!

When the trial court excludes evidence important to your case, making an offer of proof is critical to preserving the issue for appellate review.  Otherwise, the appellate court will not know what was excluded, much less why its exclusion was prejudicial—a fundamental requirement for reversal. 

Feb 08, 2018 Laurie J. Hepler
Think Like The Reader

Appellate justices and staff attorneys who don’t know your case will have to decide it.  Make it easier for them: step outside your box and consider the case from their perspective. You know your facts and issues.  The case interests you, and since you’re prosecuting

Jan 11, 2018 Alana H. Rotter
I Object!

A party that fails to preserve its evidentiary objections in the trial court forfeits any appellate challenge to the admission of the evidence.  Here are some guidelines for avoiding a forfeiture: If the trial court definitively denies a pre-trial motion in limine to exclude evidence,

Nov 16, 2017 Alana H. Rotter
No Harm, No Foul

Showing trial court error is critical in any appeal, but it’s usually not enough.  Only a few types of errors trigger an automatic reversal.  For all other types of errors, the appellant must also show prejudice—that is, a reasonable probability that the error affected the

Oct 12, 2017 Laurie J. Hepler
Is This Appealable?

California appellate courts lose jurisdiction once the deadline passes to notice an appeal.  Truly and forever.  So it’s time again for ASIC’s semi-annual selection of orders that just might be appealable (or not … we try to keep it interesting).  As always: these answers apply

Sep 12, 2017 Alana H. Rotter
Heads Up

Descriptive headings make briefs more clear, and result in a table of contents that provides a helpful roadmap of your position.  But on-point headings are more than just good practice—they are required, and failing to use them comes at a high cost: Each point in

Aug 10, 2017 Laurie J. Hepler
Lurching Toward E-Filing

Federal appellate courts mastered e-filing many years ago, and it’s the norm nationwide.   But state appellate courts in California still have not fully implemented it.  Here’s a summary of where things stand: The state Supreme Court forbids e-filing for merits briefs, but as of September

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