Vol. 23, No. 4, 10. Utah Standards of Appellate Review - Third Edition.

Author:by Norman H.Jackson and Lisa Broderick Thornton
 
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Utah Bar Journal

Volume 23.

Vol. 23, No. 4, 10.

Utah Standards of Appellate Review - Third Edition

Utah Bar JournalVolume 23 No. 4July/August 2010ArticlesUtah Standards of Appellate Review - Third Editionby Norman H.Jackson and Lisa Broderick ThorntonPREFACE TO THE THIRD EDITION: 2010/2011

This new edition of Judge Jackson's Utah Standards of Appellate Review revises and updates two prior Utah Bar Journal articles.The first was designated as a Collector's Issue, Vol. 7, No. 8,October 1994. The second was published as a Revised edition,Vol. 12, No. 8, October 1999. Judge Jackson discovered early inhis appellate practice that there was no ready reference where the standard of review for a particular issue could be located.Thus, one of his initial acts as an appellate judge was to ask his first law clerk, Annina Mitchell, to begin compiling a summary of standards of review. In due course, that summary grew and was circulated at the appellate courts, the attorney general's office,and appellate practice seminars. Finally, it was cited by an attorney as legal authority in an appellant's brief at the Utah Court of Appeals.Accordingly, the first edition was compiled and published in 1994,seven years after Utah became the 37th state to have a two court appellate system. The second edition was published in 1999 and this third edition arrives over a decade later. To access the two priorarticles, go to: http://www.utahbar.org/barjournal/frequently_requested_articles.html. Lisa Thornton, Christensen Thornton, PLLC,has joined Judge Jackson as co-author of this series. Previously,she was the editor of the final draft of the first edition. The current edition will be published in a series of successive articles. However,the Outline of Contents below is the outline for the series. Thus,you should keep each article so your set will be complete. This first article provides an overview, commentary, analysis, and proceeds with text for the Outline to the end of Challenging Findings of Fact under Appeals from Trial Courts.

FOREWORD

In 1994, Judge Jackson wrote, "I recommend careful study of the following Utah appellate opinions: State v. Pena, 869 P.2d932 (Utah 1994); State v. Thurman, 846 P2d 1256 (Utah 1993);State v. Ramirez, 817 P.2d 774 (Utah 1991); State v. Sykes, 840P.2d 825 (Utah [Ct.] App. 1992); [and] State v. Vigil, 815 P.2d1296 (Utah [Ct.] App. 1991)." Judge Norman H. Jackson, Utah Standards of Appellate Review, 7 Utah Bar J. 9, 11 (1994). In1999, Judge Jackson stated that though the four cases are all search and seizure cases,

[t]hose cases remain essential to understanding how standards of review developed after the court of appeals joined the Utah appellate system. Moreover, they show the policy considerations and systemic concerns in keeping aproper balance between trial court discretion and appellate court deference. Pena, a landmark standard-of-review case,was published shortly before the 1994 article. In Drake v.Industrial Commission, 939 P.2d 177 (Utah 1997), counseladroitly argued Pena, not to support the existing standard, butto change it. See id. at 180-82. When counsel convinced the Supreme Court to change the standard of review, he wonthe case. See id. at 180-84. Drake reveals astute appellate advocacy at its very best. Familiarity with Pena's prolific progeny, together with other standard-of-review law, will allow you to navigate carefully through the seas of appellate advocacy. My goal has been to help you by compiling a"users manual" or "ready reference" with which to begin charting your client's course. Judge Norman H. Jackson, Utah Standards of Appellate Review- Revised, 19 Utah Bar J. 8, 8 (1999). The authors hope that this series of articles will provide meaningful direction as you pilot your clients on their appellate journey.

INTRODUCTION

To Appeal or Not to Appeal - Thinking About Reversal Rates

An attorney's initial evaluation of whether to file an appeal is the most consequential of appellate activities. Attorneys who do notproperly assess the appellate worthiness of their cases do a disservice to themselves, their clients, and Utah's appellate system. Attorneys should not file appeals unless their cases present realistic reasonsfor reversing significant and substantive trial court rulings. Lowreversal rates in Utah reveal the need for attorneys to be morecareful and cautious about their decision to appeal. Justice Cardozo made a similar observation some time ago. He estimated at least 90% of cases appealed "'could not, with semblance of reason,be decided in any way but one,'" i.e., affirmed. Ruggero J. Aldisert,Opinion Writing 111 n.20 (1990) (quoting Benjamin Cardozo,Growth of the Law 60 (1924)). In other words, he estimated that no more than 10% of cases appealed would be reversed.For the period ending March 31, 2009, the reversal rate for allU.S. Courts of Appeals was 9.6%. For the same period the Tenth Circuit reversal rate was 6.8%. Reversal rates at Utah AppellateCourts are even lower. During 1998, 577 appeals were filed with the Utah Supreme Court. In the same year, 40 cases resulted in some measure of reversal. The reversal rate was a mere 7%. In1998, 711 appeals were filed in the Utah Court of Appeals and 50 reversals occurred, i.e., 7%. Utah Court of Appeals reversal rates for 2005-2007 continued to average 7%. In 2007, 564 appeals were filed in the Utah Supreme Court and 30 were reversed, i.e.5.3%. The rate was also 5.3% for 2009. These reversal rates clearly demonstrate that many Utah attorneys fail to reach a realistic conclusion when they decide to file an appeal. They are as "[t]he metaphorical descendants of Don Quixote.. .out in full forcetilting at windmills, seeking to overturn trial results that had been preordained from the moment the complaints were filed." Aldisert,supra, at 5. Attorneys need to be intellectually and dispassionately objective about the fact that trial court "determinations for the most part are final and binding, irrespective of impressive appellate briefs, thick volumes of records or eloquent argument. This reality of the judicial process is an aspect of the law lost upon mostlay persons and many lawyers." Id. at 54. Here, for attorneys with prospective appeals, we present three essential "reality checks" to use in evaluating your odds for success on appeal.For brevity, the words "trial court" or "lower tribunal" are meant to include administrative agencies.

REALITY CHECKS

Reality Check #1: Reversible Error. Has the trial court committed reversible error? "Error" that does not affect substantial rights of the parties is not reversible error, but harmless error. SeeUtah R. Civ. P. 61; Utah R. Crim. P 30(a); accord State v. Dominguez,2009 UT App 73, ¶ 12, 206 P.3d 640; State v. Mora, 2003 UT App 117, ¶ 22, 69 P.3d 838. This rule requires the appellant to show not only that an error occurred, but that it was "substantial and prejudicial." See Olson v. Olson, 2010 UT App 22,¶ 7, 226P3d 751; see Jensen v.Jensen, 2008 UT App 392, ¶ 7, 197 P3d 117.To demonstrate prejudice, appellants must show reasonable like lihood that without the error, there would have been a differentresult. See Morra v. Grand County, 2010 UT 21, ¶36, 230 P.3d1022 ; State v. Johnson, 2009 UT App 382, ¶ 37, 224 P.3d 720;State v. Davis, 2007 UT App 13, ¶¶ 15-21, 155 P.3d 909. This likelihood must be high enough to undermine confidence in the outcome. See State v. Ott, 2010 UT 1, ¶ 40, - P3d - ; Taylor v. State,2007 UT 12, ¶56, 156 P.3d 739; State v. Lafferty, 2001 UT 19,¶ 35, 20 P.3d 342. Utah Rule of Civil Procedure 61 is a mandate to courts - trial and appellate - not to disturb a verdict or judgmentunless it is clear that refusing to do so would be substantially unjust. "Thus, the integrity of verdicts, orders, and judgments is the rule and disturbance thereof the exception." 7 James W. Moore and Jo D. Lucas, Moore's Federal Practice § 61.03 (2d ed. 1993).Counsel should be mindful that no party, whether in a civil,criminal, or administrative agency case, is entitled to a trial or hearing free of all error. Thus, unless the lower tribunal has committed reversible error, one should not pursue an appeal.

Reality Check #2: Preservation. Did trial counsel preserve the error or issue for appellate review? The rationale for "preservation"is that the trial court, in fairness, ought to have the chance to correct its own errors. See Arbogast Family Trust v. River, 2008 UT App 277, ¶10, 191 P.3d 39 (stating preservation rule existsto give trial court an opportunity to address claimed error and correctit). Claims of error should be timely raised so thoughtful and probing analysis can begin in the early stages of the proceeding.If not, the claim is waived. See Utah Dept. of Transp. v. Ivers,2009 UT 56, ¶¶ 28-30, 218 P.3d 583; Arbogast, 2008 UT App277, ¶ 10; State v. Biggs, 2007 UT App 261, ¶ 7 n.4, 167 P.3d544. When the trial court has not considered a matter, the appellate court has nothing to review (plain error and rare and exceptional circumstances aside). See State v. Rhinehart, 2007 UT 61,¶ 21,167 P.3d 1046; In reD.N., 2003 UT App 262, ¶1 n.1, 76 P.3d194. Specific and timely objections and motions must first be made before the lower tribunal and then identified for the appellate court. See H.U.F. v. W.P.W., 2009 UT 10, ¶ 25, 203 P3d 943; State v.Low, 2008 UT 58, ¶ 17, 192 P.3d 867. Further, "'issues not raised in the court of appeals may...

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