Law Offices of Marjorie G. Fuller

experienced attorneys to prosecute or defend appeals, and to assist throughout trial

The Law Offices of Marjorie G. Fuller provides experienced attorneys to assist throughout trial and the appellate process, from the initial task of analyzing issues and planning trial, through briefing and oral advocacy in the courts of appeal. We have handled over 650 appeals and writs throughout California, resulting in 52 published opinions (indicating important new rulings or new interpretations of law). We provide support in court and jury trials, consulting on issues and the presentation of evidence, preparing written briefs and motions, and participating in post-trial motions and the statement of decision process.

Appellate practice is significantly different from trial practice, with its own particular rules, procedures and emphasis. It relies on legal doctrine rather than determination of facts. The purpose of appellate procedure is to review for trial court error, not to decide the case on its merits.

[T]rial attorneys who prosecute their own appeals . . . may have ‘tunnel vision.’ Having tried the case themselves, they may become convinced of the merits of their cause. They may lose objectivity and 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.)

In In re Marriage of Shaban (2001) 88 Cal.App.4th 398, the Law Offices of Marjorie G. Fuller defeated a husband’s challenge to an order that he pay its appellate counsel fees, claiming they were excessive. In affirming the fee order, the court of appeal emphasized the function and importance of appellate counsel:

. . . the orientation of trial work and appellate work is obviously different [from trial court work] . . . but that is only the beginning of the differences that come immediately to mind. For better or worse, appellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them, not just one judge . . . appellate counsel must necessarily be more acutely aware of how a given case fits within the overall framework of a given area of law, so as to be able to anticipate whether any resulting opinion will be published, and what effect counsel’s position will have on the common law as it is continuously developed . . . because the orientation in appellate courts is on whether the trial court committed a prejudicial error of law, the appellate practitioner is on occasion likely to stumble into areas implicating some of the great ideas of jurisprudence, with concomitant need for additional research and analysis that takes a broader view of the relevant legal authorities . . . the upshot of these considerations is that appellate practice entails rigorous original work in its own right.

(In re Marriage of Shaban, supra, 88 Cal.App.4th at p. 408-410.)

Appellate courts do not have independent knowledge of the cases on review before them. A trial attorney therefore must create a record to provide the appellate court with all the information necessary to decide the case. In conducting pre-trial and trial proceedings the trial attorney needs to keep in mind the form of the record on appeal and how to include the needed information. It is important to consult with an appellate practitioner before and during trial to determine how best to preserve the record, should an appeal be necessary.

The post-trial statement of decision process is one that is often misunderstood by trial counsel, resulting in the waiver of challenges on appeal. Appellate counsel are experienced and knowledgeable in this area, and their input may avoid procedural bars to demonstrating trial court error.

The Law Offices of Marjorie G. Fuller provides consultation with experienced trial and appellate counsel to make certain no issues are waived or lost on appeal as a result of failure to preserve the record in the trial court.