Considering an Appeal? RULES OF THUMB FOR APPEALS

Most pro se litigants and perhaps even a majority of lawyers do not understand appellate procedure, since they regard it as an opportunity for a new judge or panel to consider the evidence and come to a conclusion different than the trial court. Such appeals always produce the same result — judgment affirmed.
Worse, some lay people are under the mistaken impression that they can submit new evidence to the appellate court.
And then there are people who don’t understand that the deadline for filing a notice of appeal or a brief is not subject to any automatic extension and may well be the reason that the appellate court turns down the brief or even dismisses the appeal without ever hearing the merits. .

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RULES OF THUMB FOR APPEALS

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First no appeal will even be considered unless the appeal is directed to an error in procedure committed by the trial judge. The fact that the error in procedure was based upon a misapprehension of fact or law should be downplayed because unless there was absolutely no basis for the ruling by the trial court it must be affirmed. You only get one trial.
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Second the error must be persuasively shown to have produced a result that would have been different had the error not occurred — not that it SHOULD have been different but that it would have been different.
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Third the presentation must be provocative enough for a clerk — who is the first and sometimes the only one to read the brief — to put the brief in a pile for review. People underestimate the influence of clerks who often determine whether an appeal is taken seriously.
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Fourth you must be aggressive and relentlessly focussed on very narrow procedural issues and highlight discrepancies between what the trial court did in this instance and what the courts have ruled in other very similar instances or what the legislature has codified into law in a specific statute. The only exception is the rare case where you can argue that the legal doctrine should be changed because circumstances have changed.
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Fifth you can’t bring up issues that were not raised in the trial court or try to introduce new evidence into the record. The only exception to this is that if you have a persuasive argument that the trial court lacked jurisdiction over the parties or the subject matter, you can raise that at any time even on appeal.
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Sixth don’t talk about bias unless you have established in the court record that the judge has a specific interest that you can identify which did actually affect the outcome. Raising bias without a very specific and strong foundation can be dangerous: it can undermine the rest of your brief.
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Seventh, don’t argue factual logic. This also demonstrates the lack of appellate experience and undermines your credibility. It doesn’t matter if the trial judge’s decision was illogical. What matters is whether the trial judge had any factual and legal basis for arriving at the decision from which you are appealing. You can argue logic within the legal argument about which law should be applied and how, but don’t attack the facts unless you are 100% certain that there is no factual basis or facially valid document that could support the judge’s decision.
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Eighth, recognize that 1 in 6 appeals succeed and most of those are criminal cases. My opinion is that in foreclosure cases the chances of appellate success are less than 5%. In most cases where there is a success there is an appellate lawyer filing the brief and arguing the appeal.

4 Responses

  1. Appeal Court in Chicago is even more criminal enterprise than the Circus Court.

    Courts in America are the same corrupt mess as its banks and the housing market.

    My judicial con artist Robert Senechalle, who happened to be a brother-in-law to the top lawyer of the Firm who represented a fake Plaintiff Deutsche Bank, criminally concealed material evidence – purportedly “original” (clearly forged) Note.

    I timely filed an appeal and specifically stated that all documents are forged; plaintiff does not exist and the “smoking gun evidence” – the Note – is not in the case records and nobody gave me a copy of it.

    Appeal Court “Justices” who conveniently received very handsome “donations” from the same lawyers who represented the fake Plaintiff, never saw the Note based on which Senechalle awarded my home to (as I learned later) Goldman Sachs who was hiding behind Deutshce Bank and Wells Fargo masks.

    The Appeal Court ruled that since they saw a “Notation” how MERS (who personally denied its status as a Mortgagee for my loan with a fake Lender Fremont ) transferred my loan to Deutche Bank as Trustee for a fake Fremont Home Loan Trust 2006-1, they award my property to Deutsche Bank as ….Trustee for a fake Trust GSAMP 2006FM1, who actually filed the case!

    And no other Judge never agreed to reverse this totally fraudulent and void decision!

    Totally Corrupt Mockery of Justice

  2. I was told that I could not argue my case in the Delaware Supreme Court because I was Pro Se! Isn’t it true that in most foreclosure cases that the trial courts do not have subject matter jurisdiction? And, if this is correct, then there are no statutes of limitations? Right? A Void Judgement? What does a “Plea in Avoidance” mean? I was blessed because I never gave up and after 6 plus years, I took it to the new underwriters of the new substituted plaintiff which gave all parties a creative option to negotiate without having attorneys involved from a legal perspective.

  3. Yeah, it is a joke. I am in appeal Eastern District of North Carolina…I do not have high hopes of success. Cost me tens-of-thousands to get here, even with counsel. Now I am pro se…nothing to lose! That’s where most of us are. Quitting is not an option, either.

  4. So you are saying that pro se who were wrongly taken advantage of in trial court have no chance at appeal unless they hire an attorney to appeal a 5% chance. What a joke !!!

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