|A would-be client lost a lawsuit and wished to appeal. I shall refer to this case as P v. D. This is the plaintiff's (Mr. P's) opening statement:|
|"Good Morning, your Honor. Welcome to the Roshomon of Ventura civil litigation in reference to Kurosawa's famous film where every character saw things quite differently. Before you are recollections of the same set of events by two contesting parties, plaintiff, P, and defendant, D."|
|Mr. P was an unemployed screenwriter, and he represented himself at trial. (These are two very bad ideas: 1) being an unemployed screenwriter, and 2) representing oneself.) Nevertheless, Mr. P framed his case precisely in this opening statement. He was dead-on correct. The case boiled down to a simple factual dispute. This case is the perfect example of what you cannot appeal.|
|In Akira Kurosowa's 1950 classic film, Roshomon, four different characters, a bandit, a young wife, a samurai, and a precipient witness recite four different accounts of a rape (possible rape) and murder (possible murder). Who is telling the true story? Is any one of the four very different accounts of this incident the "truth?" Is the truth some variation on these four versions of the incident? The answer is left to the viewer. Each person who has seen Roshomon since 1950 may have come to a different conclusion.|
|It is an unusual event for a criminal case to go to trial. However, when it does, the facts are usually hotly disputed. The prosecution accuses the defendant of committing a crime. The defendant's story is: "Somebody did it, but it wasn't me."|
|Civil cases are different. Often the litigants profess only modest variations as to the facts. In many instances a civil dispute centers upon subtle legal ramifications of the facts. However, occasionally, as in Mr. P's lawsuit, the dispute is purely "he said / she said."|
P v. D was a bench trial, and the judge determined the facts in favor of the defendant. The plaintiff lost. Mr. P was devastated by the outcome. What could he do about it? Not much. Lawyers and judges are trained to do only one thing -- apply law to facts.
Lawyers and judges do not necessarily know what the law is. Any individual lawyer will know some law. Nobody -- even United States Supreme Court Justices -- know all law. Lawyers and judges know how to research the law and determine what the law is.
Likewise, lawyers are not trained to investigate facts. On law school exams and on the bar exam, the examinee is given the facts by the examiner. The examinee must accept these facts as given, and apply the law to these undisputed facts.
Real life is messier. People sometimes completely disagree as to the facts. They usually disagree at least somewhat as to the facts. In P v. D, plaintiff and defendant disagreed completely as to the facts, and the trier of fact believed the defendant. The judge properly applied the law to the facts as he determined them. Mr. P's argument on appeal is essentially: "The judge got the facts wrong. My version of the facts is the truth." Mr. P has no chance of success on appeal.
|You cannot appeal factual findings. This is what appellate courts say:|
|"The trier of fact is the exclusive judge of the weight of the evidence, the credibility of witnesses and how factual conflicts shall be resolved. The power of this court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, that will support the findings of the jury and when two or more inferences can reasonably be deduced from the facts the reviewing court is without power to substitute its deductions for those of the trier of fact."|
|This means you get one chance at the facts. If you are reading this page, it probably means that you already got that one chance. If the outcome of your case hinged toally upon a factual finding adverse to you, most likely there is nothing that can be done now. Unless no rational person could have determined the facts as the trier of fact determined them, the trier of fact's determination stands. Factual findings are not reversed.|
|If you are the potential appellant, lick your wounds and move on. If you are the respondent, while there is no guarantee that there was no reversible error that will change the outcome of your lawsuit, take heart in knowing that the Court of Appeal will not revisit a purely factual dispute.|
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