Ask me the easiest way to win an appeal, and I’ll answer, “Represent the appellee.” Depending on the issue, the appellee often benefits from deferential standards of review. But one of the appellee’s greatest advantages is one I seldom see lawyers use: Code of Civil Procedure art. 2133(B). This provision allows the appellee to assert, in support of affirmance, “any argument supported by the record ....” This means that, unlike the appellant, the appellee is not confined to arguments made in the trial court. Caselaw interpreting art. 2133(B) holds that, even if an argument was rejected or not considered by the trial court, it can still be raised on appeal in defense of the trial court’s judgment.
If you represent the appellee, most of the time you will want to stick with whatever argument worked in the trial court. Just remember that you are not confined to what worked in the trial court, or even what you raised in the trial court. If the record supports the argument, art. 2133(B) allows you to make it.