Folks sometimes consult with me shortly before their case is going to trial to obtain a second opinion. Typically they are either unhappy with the advice they are receiving from their current attorney, and want to know whether that advice is accurate before deciding whether to accept it, or they want to know what additional or different things an attorney could be doing to help them accomplish their goals.
Sometimes, after the consult, they will come to the conclusion that their attorney is not meeting their needs but they will decide to remain with that attorney anyway. The question I almost always get asked after such consults is, “if I stay with my current attorney are you willing to handle the appeal?”
This question demonstrates a lack of knowledge as to what an appeal can and cannot fix. Many non lawyers tend to think of an appeal as “a second bite at the apple”; in other words a chance to do things correctly the second time when they weren’t done right initially. However an appeal is much narrower than that. Appeals are not a method of doing correctly what was done incorrectly at trial. Rather appeals solely exist to correct material (i.e., consequential) errors of law or fact. One cannot introduce new evidence or raise new legal arguments on appeal. While the appellate courts can reverse or modify a family court’s order based on errors of fact, it is difficult to do so.
The family court is a court of equity. In appeals from the family court, the appellate court reviews factual and legal issues de novo. De novo review permits appellate court fact-finding, notwithstanding the presence of evidence supporting the family court’s findings. However, this broad standard of review does not require the appellate court to disregard the factual findings of the family court or ignore the fact that the family court is in the better position to assess the credibility of the witnesses. Moreover, the appellant is not relieved of the burden of demonstrating error in the family court’s findings of fact Accordingly, we will affirm the decision of the family court unless its decision is controlled by some error of law or the appellant satisfies the burden of showing the preponderance of the evidence actually supports contrary factual findings by this court.
Jenkins v. Jenkins, 401 S.C. 191, 736 S.E.2d 392 (Ct. App. 2012) (citations omitted).
If a party fails to call a witness at trial who would have supplied important information to support that party’s position, that cannot be corrected on appeal. If a party fails to introduce evidence at trial to support that party’s position, that cannot be corrected on appeal. If a party fails to elicit testimony from a witness at trial that would have supported that party’s position, that cannot be corrected on appeal. Failing to do these three things correctly at trial–calling essential witnesses; introducing essential evidence; eliciting essential testimony–cannot be corrected after trial.
While it is easier to obtain reversal based on legal error than on factual error, one cannot make legal arguments on appeal that were not raised at trial. With the exception of subject matter jurisdiction (the power of the court to hear the case) one cannot raise an issue on appeal that was not raised in the trial court. Buist v. Buist, 399 S.C. 110, 730 S.E.2d 879 (Ct. App. 2012). Further, an issue that was raised at trial but not ruled upon by the trial court cannot be raised on appeal unless one first files a timely motion to reconsider with the trial court. Elam v. South Carolina Dept. of Transp., 361 S.C. 9,602 S.E.2d 772, 780 (2004). Moreover, a party cannot raise an issue in a post-trial motion that could have been raised at trial. Patterson v. Reid, 318 S.C. 183, 456 S.E.2d 436 (Ct.App 1995). Thus issues that were not raised at trial, and were not ruled upon at trial or re-raised in a motion to reconsider, cannot be addressed on appeal.
Often when the client has lost confidence in the attorney it is because the client does not believe the attorney is prepared to establish the factual record and make the legal arguments necessary for the client to achieve his or her goals at trial. Sticking with an attorney in whom one has lost confidence while hoping that another attorney can fix a bad outcome on appeal is ill advised.
Greg, I consistently advise young lawyers “If you want to be a great trial lawyer, do appellate work. If you want to be a great appellate lawyer, do trial work.” Trial lawyers who refuse to do appellate work are, for the most part, incapable of understanding the need for making an appellate record, even when it costs points with the trial judge. Also, they are incapable of understanding how awful poorly worded routine questions appear in a transcript of record.