Top Tips for Respondents on Appeal to Get Your Judgment Affirmed

The California Appellate Law Podcast

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette.

So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of your superior position on appeal. The tips include:

👉 Appellants often appeal from non-appealable orders. Or they file their notice of appeal untimely. Check for these grounds for a motion to dismiss.

👉 Enforce the judgment, unless it is clearly stayed. Enforcement can put a lot of pressure on an appellant.

👉 Are there record defects? Jeff and I debate the different approaches. You can either counter-designate to add missing items, or you can argue that the appellant failed its burden to furnish a complete record.

👉 Help out the trial court’s reasoning. A judgment is appealed for its result, not its reasoning. If there are reasons the trial court didn’t think of, raise them in your respondent's brief.

👉 Did the appellant fail to cite authority? Was the opening brief scattershot without clear organization or well-developed arguments? You might argue that these poorly identified issues and arguments are forfeited.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

• Swain v. California Cas. Ins. Co. (2002) 99 Cal.App.4th 1 [pendency of cross-complaint may render judgment non-final and non-appealable]
• *Garg* v. Garg (2022) 82 Cal.App.5th 1036, 1044–1045
• Sprague v. Equifax, Inc. (D2d4 1985) 166 Cal.App.3d 1012, 1050 [If [no legal argument] is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’]
• Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 ["A party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." ]
• In re Marriage of Fink (1979) 25 Cal.3d 877, 887 [An appellant cannot simply provide a selective statement of facts in its opening brief. "Such briefing is manifestly deficient."]
• If fees were recoverable at trial, fees may be sought for work performed on appeal. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.)
• A judgment consisting solely of costs and attorney’s fees is normally