Young Lawyers Division
| Publication year | 2015 |
| Pages | 66 |
March, 2015
The Devil’s Advocate is Dead; Long Live the Rule
Eric Boyd Vogeler and Kyle E. Witherspoon, J..
The Utah Supreme Court recently and significantly reformed appellate practice in Utah, though you may not have noticed.
In State v. Nielsen, 2014 UT 10, 326 P.3d 645, the court put to rest the judicially created default notion of the marshaling doctrine in favor of Rule 24(a)(9) of the Utah Rules of Appellate Procedure and marshaling’s traditional role as an element of an appellant’s burden of persuasion.
The Marshaling Doctrine
For years, Utah’s marshaling doctrine had come to serve as an unpredictable minefield for appellants. Put simply, the marshaling doctrine requires an appellant to present the evidence supporting the factual findings she challenges on appeal. Over time, however, the marshaling standard grew increasingly mercurial. Depending on the panel and the case, the doctrine could be as innocuous as a speed bump on the road to a case’s merits or, as recent cases had sometimes applied it, marshaling could stand as a full-stop, procedural default of an appellant’s case. And even in a world governed by strict rules of procedure, default is harsh medicine.
As a result of the appellate courts’ inconsistent application of the doctrine and the unclear requirements for marshaling, arguments aimed at the sufficiency of an appellant’s marshaling became something of a procedural necessity in practically all appellees’ briefs. Thus, marshaling evolved into something it was never meant to be: a trap for even the wariest of appellants.
That trap looks to have been removed. In Nielsen, the Utah Supreme Court retooled the marshaling doctrine and sought to firmly plant it in clear and predictable principles of law. At first blush, the result appears to be a substantial overhaul of the marshaling requirement. In reality, however, while the practical impact of Nielsen is significant, Nielsen simply brings the marshaling doctrine back to its roots as a substantive element of both the court’s evaluation of the merits of a case and of the appellant’s burden of persuasion rather than a matter of procedural form and compliance. See id. ¶¶ 34–35. Practitioners and jurists should welcome the change.
A Page Out of History
As the Nielsen court itself noted, marshaling has long been enshrined in our law. Going back to 1949, the state’s highest court stated it plainly: “[C]ounsel who asserts error has the burden of showing that error exists. It is not [the court’s] duty to search the record in quest for error.” Reid v. Anderson, 211 P.2d 206, 208 (Utah 1949). Decades later, the Utah Supreme Court coined the term “marshal the evidence” but essentially echoed the principle laid out in Reid: that an appellant must “demonstrate that even viewing [a trial court’s decision] in the light most favorable to the court below, the evidence is insufficient to support the findings.” Scharf v. BMG Corp., 700 P.2d 1068, 1070.
Somewhere in its development, however, the marshaling doctrine evolved from a general principle of appellate persuasion into an unbounded imperative, governed more by the discretion of the court than by any reliable standard. Inconsistent application of the doctrine left appellants without any sense of where their marshaling fate might fall. Indeed, as recently as 2007, the court reminded litigants that precedent demanded that appellate courts “affirm the accuracy of the agency’s or trial court’s factual findings in the absence of marshaling.” Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints, 2007 UT 42, ¶ 18, 164 P.3d 384. In the same breath, however, the court softly backed away from that hardline stance, stating that the marshaling requirement was “not, itself, a rule of substantive law” or some “limitation on the power of appellate courts,” but...
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