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Appeals, Writs, and Complex Motions Practice

Why Choose a Certified Appellate Specialist?

A Certified Appellate Specialist is identified by The State Bar of California Board of Legal Specialization as an attorney who demonstrates skill in the area of appeals.

The State Bar of California adopted a program for certifying legal specialists in 1985. (See Rules Governing Accreditation of Specialty Certification Programs for Attorneys, section 1.0 et seq.) The Bar began offering an appellate specialty certification in 1996. The purpose of the specialty program is to identify attorneys who demonstrate proficiency in the specialty fields and to encourage attorney competence.

An application for certification consists of two parts: A written examination and a comprehensive written application demonstrating compliance with the remaining requirements for the particular specialty.

Appellate specialists have unique skills and knowledge.

Mr. Sargeant has the unique skills and special knowledge required for appellate work. These skills differ from the skills and special knowledge required to be a trial attorney.

Appellate cases are decided primarily on the briefs. Many appellate courts prepare preliminary opinions well before oral argument is even set. The three assigned justices rarely materially change the result after hearing oral argument. As an experienced appellate attorney, he has the skills to draft briefs that have the best chance for success.  He can also determine which cases would benefit from oral argument and how to prepare for the challenges of effectively presenting a case to a panel of justices.

Appellate work requires a penetrating examination of the issues and comprehensive research of all the relevant legal authorities on both sides of the issue. “Appellate work is most assuredly not the recycling of trial level points and authorities,” but requires “rigorous original work in its own right.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 408, 410.) As an experienced appellate attorney, I have a proven writing ability to prepare persuasive appellate briefs, with solid, in-depth research and persuasive analysis.

Certified appellate specialists also understand that the case facts must be presented to the court in an impartial manner. We know it is crucial to carefully choose the issues for the best result possible. Not all possible issues should be argued on appeal. Including a weak, losing argument could potentially drag other, more meritorious arguments down with it to defeat. Choosing which issues will provide the best result is one of the most important services appellate specialists provide.

Appellate specialists understand how appellate courts operate.

As an experienced appellate attorney, Mr. Sargeant writes persuasive briefs—and effectively engages the appellate justices at oral argument—because he understands how appellate justices think. He understands distinct issues raised only on appeal, like the applicable "standard of review" and what constitutes "prejudicial error." We also know how to identify and present issues that have the highest chance of success.

Certified appellate specialists know and understand appellate procedures and rules. We know that even eloquent briefs and arguments fail if they ignore the rules. A brilliant brief cannot save a late-filed appeal, an unappealable order, or a waived or moot issue.

As an experienced appellate attorney, I also determine how best to designate the record on appeal for appellate success. Since appellate courts rely solely on the record prepared by the superior court clerk and the reporters' transcripts, an appeal will fail with an inadequate record, even where the trial court’s errors are obvious and the briefs are well-written.

Appellate specialists have the perspective needed to properly present the case to the reviewing court.

A California Court of Appeal has said that attorneys who prosecute their own appeals may have “tunnel vision” or may have become so “convinced of the merits of their cause” that they “lose objectivity,” thus trial attorneys “would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.” (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449-1450.) As experienced appellate attorneys, we see the issues as the reviewing courts see them -- based on the record. Like the justices, appellate lawyers view cases with detachment. Trial lawyers have intimate knowledge of the facts and an empathetic understanding of their clients’ situation. They may have persuaded themselves that the facts and the law are on their clients’ side and may miss evidentiary gaps or flawed legal arguments. As an experienced appellate attorney, I provide the new perspective and detached critical analysis required to identify these gaps and flaws in the trial court's rulings or the jury's findings, to present the most likely winning issues to the reviewing court.

Appellate specialists can assist both respondents and appellants.

As experienced an appellate attorney, my perspective is valuable for the trial counsel, whether their clients are appellants or respondents. Loss of objectivity can affect trial counsel whether they won or lost. The same skills, knowledge, understanding and perspective of an experienced appellate specialist that can win a reversal for an appellant can preserve a win for the respondent.

Appellate specialists can help trial counsel decide whether to file an appeal or seek a writ.

As experienced appellate counsel, I can help trial counsel decide whether to take an appeal or seek an appellate "extraordinary writ," directing the trial court to change a critical interim ruling before the case is over and an appeal is possible. I can also provide a “second opinion” for clients. Because we study how appellate judges think and view issues similarly to the way appellate courts see them, we can provide an expert assessment of the chances of succeeding on appeal or of obtaining an appropriate writ from the Court of Appeal.

Appellate specialists can tell trial counsel when and how to appeal or seek a writ.

As experienced appellate attorneys, we can advise trial counsel when and how to file an appeal or seek a writ. We know which trial court decisions and orders are appealable and which can be reviewed only through a writ petition. We also know the rules for perfecting an appeal or obtaining an appellate writ, including designating the record and the time limits for appealing or petitioning for a writ. If the record is improperly designated, the chances of success will be compromised. If time limits are unmet, appellate review will be lost.

Appellate specialists can assist trial counsel who prefer to do their own appeals.

As an experienced appellate attorney, Mr. Sargeant can, without acting as counsel of record, help trial counsel (or their client) with their appeals. I can review all or part of the record and suggest the best issues to raise, and how the arguments should be made. He can review and edit a draft brief to suggest improvements.

Appellate specialists can assist trial counsel in the trial courts to frame and preserve issues and ensure the best possible record on appeal.

Certified appellate specialists can work with trial counsel in the trial courts before, during and after trial and judgment. We can help trial counsel frame issues in the trial court, preserve the issues for possible appellate review, and ensure the best possible record on appeal.  As experienced appellate attorneys, we are uniquely equipped to help with demurrers and motions for summary judgment that may cause judgment before trial. After trial, we know how to secure critical statements of decision, when a motion for new trial is required or advisable, and assist with crafting the terms of the judgment to improve the loser’s chance of getting a reversal or the winner’s chance of prevailing by obtaining an affirmance.  We understand post-trial motions (like motions for a new trial or for reconsideration) and know how these motions can improve the chances on appeal. We also know how some of these post-trial motions affect the timing for filing an appeal and whether the rulings on the motions can be separately appealed.

Trial counsel and their clients would be well served by hiring Mr. Sargeant for their appellate matters because he is a Certified Appellate Specialist, certified by the State Bar of California Board of Legal Specialization. With his assistance, you will have the best opportunity for success on appeal.

Mr. Sargeant will tell you, realistically, what your chances are on appeal.

On average, only about 20% of civil appeals result in at least a partial, if not complete, reversal of the judgment or orders from which the appeal was taken. Because of the applicable standard of review, depending on the type of issue to be raised, the chances may be much less, and sometimes, much more likely. If your proposed appeal is unlikely to succeed, I will tell you so.

On the other hand, if you prevailed at trial and the opposing side has appealed, I will honestly advise you concerning your chances of winning the appeal. As just noted, 20% of cases are reversed on appeal. Do you want to take those chances with your hard-fought victory? I will give you a realistic assessment of the likelihood of prevailing. If we decide to defend the appeal, having an appellate specialist will enhance your odds of prevailing, because there are many traps for the unwary appealing party and his or her attorney in presenting their arguments.