Appellate counsel know that the most difficult argument to make on appeal is that the jury’s verdict is not supported by the substantial evidence. Yet, if you are going to attempt to make that argument you must include adequate citations to the record in your brief. Indeed, you are tasked with the duty to summarize the evidence — all the evidence — on the point being argued with appropriate citations to the record. Failure to do so will inevitably lead to an appellate court ruling that you have failed to carry your “daunting burden.”
These points were noted in a published opinion from the 6th DCA this week in Schimidlin v. City of Palo Alto. There, the court chastized the appellant for failing to comply with this rule of appellate practice. The court noted:
“Defendants assert that the evidence was insufficient to support the jury’s finding of excessive force. At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts. This approach disregards the fundamental principles governing appellate review of factual findings.”
Ouch! This is not the sort of thing you want to be reading about your brief in a published opinion. Nonetheless, as Greg May points out over at California Blog of Appeal, this is an all too common error in appellate presentations.
I should point out that, at least in theory, it is not impossible to prevail on appeal by arguing that the verdict is not supported by substantial evidence. But even a vanishingly small chance of success will disappear altogether if you do not give the appellate court the tools it needs to rule in your favor. That includes a fair presentation of the facts, both for and against your client, with appropriate citation to the record.