Proper planning prevents poor performance

[TOP VERDICTS SUPPLEMENT]

With an appellate strategy, the 5 Ps of success -- Proper Planning Prevents Poor Performance -- hold true. Preparing for appellate litigation is as much about preparing to defend a win as much as it is about preparing to come back from a loss. Prudent litigators simultaneously prepare their trial and appellate strategy in tandem avoiding the consequences of the maxim, "He who fails to plan, plans to fail."

Anticipate If and How an Order Is Appealable.

Often, only after a win/loss do attorneys and litigants ask, "Can we (or they) appeal this now?" Code of Civil Procedure Section 904.1 determines whether a trial court's order is appealable final judgment -- "'no issue is left for future consideration except the fact of compliance or noncompliance with the terms of'.'" The codified "one judgment rule" in Section 904.1 provides a party appealing a final judgment certain rights, including the right to a written opinion and the right to oral argument.

Determining whether a particular order is a final judgment can be tricky. If a direct appeal is not immediately available, writ relief may be a viable avenue. A writ proceeding is similar to an appeal because it challenges a perceived mistake by the trial court, but they are considered "extraordinary" relief and are generally only considered under certain circumstances. For example, a writ in California may be appropriate if the issue has widespread interest or is a significant constitutional issue. A writ may also be issued if the petitioner will suffer harm or prejudice that cannot be corrected on appeal. As a practical matter, writ relief is governed by its own set of procedural rules and briefing requirements, which often require more upfront work on an accelerated deadline. Certain motions require writ relief. Before filing any motion, prudent counsel will consider whether the court's order will unlock a direct appeal under Section 904.1 or whether writ relief is available or required.

Set the Record Straight.

With little exception, if it is not in the record, it doesn't exist. While certain trial courts in California always have court reporters, many do not. Prepare for the unexpected and have a court reporter booked. And watch out for off the record colloquies or exchanges in chambers not on the record. Once back on the record, reiterate all objections to preserve them later. Even when the trial court announces its intention to rule a certain way and an objection likely will not alter the outcome, objecting is necessary to preserve it for appeal. Per In re Marriage of Broderick, "an appellant waives [the] right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal."

Similarly, where appropriate, counsel should request the trial court issue a statement of decision, explaining the factual and legal bases of the decision. A statement of decision is an important tool in bench trials and in certain motions where the trial court makes a factual determination, because it allows the appellate court to consider how the trial court applied the facts to the law. Without a statement of decision, the appellate court will presume the trial court made the correct factual findings. In a bench trial lasting more than eight hours, the statement of decision may be requested within ten days of the court's tentative decision. In motions or bench trials lasting less than eight hours, trial counsel must request the statement of decision before the matter is submitted for decision.

Don't Waive Goodbye to an Argument.

A common mistake trial attorneys make when condensing their artfully crafted memoranda of points and authorities to meet the requisite page limits, is that they leave potential appellate arguments on the editing floor. From In re Marriage of Broderick, "A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant." This doctrine applies equally to arguments not advanced in or considered by the trial court.

It's difficult to predict how a case will shape up and eventually play out. A theory of liability or potential defense that may initially appear to be a long shot may prove out to be the winning sword or shield on appeal. To help prepare against missing a winning argument, gather all the potential legal arguments -- including the long-shots -- before the initial draft to explore what facts or evidence would need to exist to make those arguments strong. After thorough fact-gathering, determine if you can verify the existence (or nonexistence) of necessary facts. This is easier said than done. When in doubt, practice succinct drafting so you can keep all argument avenues in play instead of abandoning potentially viable arguments.

Three Steps Ahead: Anticipating Objections and Offers of Proof

For the chess match of trial, prepare in advance to take your opposing side's evidence off the board and to keep your own pieces on and in play.

Anticipate the evidentiary issues and prepare in advance your specific objections (all grounds) or offers of proof. Like any other legal argument, legal objections to the admission of evidence must be preserved to be considered upon appeal. Further, objections to evidence and motions to strike should be specific on their grounds, both so the trial court can properly rule and so the party offering the evidence can cure.

Similarly, when the roles are reversed, avoid being duped into providing a deficient offer of proof. California has long required that "[a]n offer of proof must ... be specific in indicating the purpose of the testimony, the name of the witness and the content of the answer to be elicited."

Final Thoughts

Litigation at the trial level can move quickly, and facts and evidence can appear out of nowhere, causing new and unexpected legal arguments. Attorneys at the trial level should utilize the downtime in the early stages of litigation to identify and analyze the potential legal arguments that arise. Then, through the investigation and discovery process, constantly reassess those arguments and how to best present them. By getting a head start on the legal issues and laying the proper groundwork, your appellate counsel will be in best position to defend a win or mitigate a loss.