Winning on Appeal: Ten Essentials Every Trial Lawyer Must Know

Tim Kowal June 25, 2025

Earlier this month, , I presented my talk Winning on Appeal: Ten Essentials Every Trial Lawyer Must Know with Jeff Lewis at the California Lawyers Association Solo and Small Firms event. We shared insights based on our work as appellate specialists and addressed some of the most common mistakes that trial lawyers make that end up hurting them on appeal.

Here are the tips we covered:

Rule Zero: If it’s not in the record, it didn’t happen.

#1 Master the appellate record. (Recap sidebars, in-chambers rulings, and make sure everything is documented.)

#2 File a timely notice of appeal. (Always assume 60 days.)

#3 Request a Statement of Decision to avoid implied findings.

#4 Use post-trial motions (to preserve issues like excessive or inadequate damages).

#5 Match your pleadings to your theories (and update them before or during trial if needed).

#6 Preserve evidentiary issues (make proffers, and don’t fall into the trap of deferred MIL rulings).

#7 Monitor minute orders in real time—not after trial is over.

#8 Avoid common briefing mistakes (like failing to cite the record or addressing only one reason for a ruling).

#9 Advise your client about critical post-judgment issues (e.g., fees, costs, bonds, interest).

#10 Involve appellate counsel early (don’t wait until the appeal is filed).

Bonus Tips for Respondents:

Know which orders are appealable — and which require writs.
File a motion to dismiss when appropriate.
Consider counter-designation of the record.
You can save your client money by borrowing the appellate record.

Statistics We Covered:

70–80% of civil appeals are affirmed.
90–95% of writ petitions are summarily denied.
97% of petitions for review are denied.

Bonus Content:

We also discussed several high-impact cases currently pending before the California Supreme Court — including issues around arbitration, public records, and common law taxpayer standing.

Thanks again to everyone who attended — we always enjoy connecting with trial lawyers who want to sharpen their skills for appellate preservation.

You may download a PDF of our slideshow by clicking through to the full article.

Winning on Appeal Ten Essentials Every Trial Lawyer Must Know

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at Tim@KowalLawGroup.com or (949) 676-9989.

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

Winning on Appeal: Ten Essentials Every Trial Lawyer Must Know

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"A judge is a law student who grades his own papers." — H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187