consider. If the client has chosen someone who is green at trial or decides not to pur- sue a line of questioning, there is nothing I can do. At the extreme end, the attorney’s handling of the case may be malpractice. • Attorney malpractice It isn’t uncommon for the client to
wonder why he or she lost at trial. There are times when the client will ask about an appeal but the real remedy is an action for attorney malpractice. If the attorney has committed malpractice, then the client’s remedy is beyond the reach of an appeal.
Generally issues cannot be raised for the first time on appeal. As a general rule, an appellant can-
not assert a new theory for the first time on appeal. This rule is based on fairness and incorporates principles of estoppel and waiver. Of course, such a rule has profound implications for appellants and their trial attorneys. There are exceptions to this rule,
such as when the new issue involves a mat- ter of law as applied to undisputed facts. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) “Only when the issue pre- sented involves purely a legal question, on an uncontroverted record and requires no fac- tual determinations, is it appropriate to address new theories.” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847; italics in original.) The appellate court may also exercise
its discretion and consider constitutional issues raised for the first time on appeal “especially when . . . the asserted error fundamentally affects the validity of the judgment . . . or important issues of pub- lic policy are at issue . . .” (County of Orange v. Ivansco (1998) 67 Cal.App.4th 328, 331, fn. 2.)
Conclusion An obstacle doesn’t necessarily mean
an appellant can’t win on appeal. Obviously, appellants win enough of the time to make an appeal a worthwhile gamble; however, obstacles need to be considered and disclosed to the client. If the client chooses to move forward with the appeal, at least the client can make an informed decision.
JULY 2011 The Advocate Magazine — 73
Donna Bader, a certified appellate special-
ist, has practiced for over 30 years in Orange County. She is the former editor of Advocate and Plaintiff magazines and the author of a
new book, An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial.
www.anappealtoreason.com.
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