Appellate magic relies on trial lawyer preparation

[TOP VERDICTS SUPPLEMENT]

Appellate lawyers can seem to perform a kind of magic. They use mystical-sounding terms like "supersedeas," and peer at cases through crystalline prisms called "standards of review." They bury themselves in old books, saw precedents in half, and sometimes pull victory from behind the ear of defeat.

What looks so easy for a magician, though, usually comes from a lot of practice and advance planning. Tricky devices set up just-so, planted audience-members volunteering at the right time, and years of practice.

Appellate magic is no different. Advance planning is a critical component of success on appeal. But unlike professional magicians, most of the time, appellate lawyers don't control the advance planning. While sophisticated clients with high-stakes litigation may have the foresight and budget to bring an appellate lawyer onto their team at the outset, many litigants just want to get through trial in one piece and go from there.

That means laying the essential groundwork for an appeal -- what we generally think of as making a record and preserving objections -- often falls to trial counsel.

If that's your situation, it means that your client is relying on you to ensure the right planning takes place so if things go south, an appellate lawyer is a position to become involved and perform the most powerful magic he or she can.

To that end, here are ten of the most common mistakes trial lawyers make that have a negative impact on the eventual appeal.

1. Get transcripts for everything.

From cases that seem too easy to need them to discussions about jury instructions, there's a point in every litigation where there may be temptation to do something, anything, without a court reporter. Don't give in to it. It's significantly more difficult to get a judgment reversed without a relevant transcript, and some courts have held it impossible. If a judge insists on discussing matters in chambers without a reporter, get a summary of what occurred on the record as soon as you're back in court.

2. Get enough facts on the record to tell a story.

To have a real chance at reversal, or to defend most effectively a favorable decision, your appellate lawyer needs to be able to tell a story about why you should win. To do that, the record needs enough facts for a narrative to appear. Especially in very technical litigation, like commercial real property disputes or patent litigation, lawyers sometimes forget the background even while including the details. It's a lot harder to convince an appellate court to reverse a judgment foreclosing on Parcel No. 3473 than one shutting down a manufacturing plant or selling off the longtime home of a family of five.

3. Follow the summary judgment rules carefully.

In both state and federal court, motions for summary judgment and oppositions require separate statements of disputed and undisputed facts. Trial judges have discretion to consider only those separate statements whether determining whether a material factual dispute exists -- discretion the appellate courts will pay heed to. Your memorandum might mention, or your declarations might attach, all kinds of evidence to support your position -- but if you don't also list it in your separate statement, the trial court can ignore it and there's nothing an appellate lawyer can do.

4. Do the Rule 50 dance in federal court.

Federal Rule of Civil Procedure 50 concerns judgment as a matter of law in a jury trial -- the modern name for a JNOV -- and it has some rigid rules. First, you must file a pre-judgment motion under Rule 50(a) and raise all the legal issues you think support your motion before the matter goes to the jury. If you lose the motion and the trial, you can renew your prior motion under Rule 50(b). But be warned, you can only "renew" arguments that you previously raised in your Rule 50(a) motion, so plan carefully from the outset.

5. Motions in limine are an appellate lawyer's friend.

If you want to make a clear record of your legal arguments for the inclusion or exclusion of evidence, there's no better way than a motion in limine. It will explain your arguments clearly both to the trial court and ensure they are broadly preserved to your appellate counsel the most flexibility later on.

6. Use offers of proof to get excluded evidence into the appellate record, and make sure to move to enter admitted evidence into the trial record.

Lose a motion in limine or evidentiary objection at trial? Was the evidence excluded critical to the case you planned to present? Don't forget to make an offer of proof! That's the only way the evidence can get in to the record so the appellate court can consider your arguments. Likewise, if you won an evidentiary objection or showed evidence to a witness, be sure it's formally entered into the record so the appellate court -- not to mention the jury -- can look at it if it needs to.

7. Think long and hard about your verdict form.

There are different kinds of verdict forms, and they each have different advantages and disadvantages. General verdict forms, which ask only for an ultimate answer, will lead appellate courts to assume the jury found whatever predicate findings are necessary to support the verdict. A special verdict form, in contrast, asks the jury to consider only the discrete pieces of each cause of action rather than the final outcome, and the appellate court won't presume the jury found anything but those elements. A mixed verdict form asks for both the elements and a final outcome. The rub is that all verdict forms must be internally coherent and absent of inconsistent findings, and special or mixed verdict forms can't miss any pieces of the puzzle. Otherwise, a seemingly strong judgment can run into trouble.

8. Don't agree to any jury instructions your opponents propose, unless you're absolutely certain you want them.

One of the most frustrating ways to lose a case is to be found to have invited an error you didn't mean to invite, and thus forfeited any arguments you might have about it. Most often, trial lawyers trip over the invited error doctrine during jury instructions. Judges tend to want the parties to agree as much as possible on instructions, so a lawyer might accept an innocuous-seeming instruction to seem agreeable -- and accidentally blow any later complaint about it. This can be magnified where an instructional colloquy takes place in chambers without a court reporter (see Tip No. 1 above). Best practice is always for trial lawyers on each side to propose, and stick with, the most favorable instructions they can muster, and ensure their objections to the other side's proposed instructions make it into a transcript one way or another.

9. Request a timely statement of decision in California.

Failure to explain the reason for a dispositive ruling is generally an abuse of discretion in federal court, but it's only a problem in California courts if a party has formally requested a statement of decision. That request usually has to be made within 10 days of the decision's initial announcement (for longer matters) or before submission (for shorter ones), and must specify the precise issues the party wants the court to discuss. If no statement of decision is requested, the appellate court will affirm based on any possible justification for the trial court's ruling supported by the evidence, which can make a ruling more difficult to challenge -- but easier to defend.

10. File a new trial motion if you want to contest the amount of damages.

The amount of damages awarded isn't generally known until the very end of a trial, which means a losing defendant doesn't really have a way to preserve an objection to the amount before it's announced. Thus, a new trial motion challenging the amount of damages is the only way to ensure you can raise a damages-amount contention on appeal.

Trial counsel's protection of the record is the essential preparation that allows appellate Houdinis to pull anything more than rabbits out of their hats. Remembering these tips will help make the magic happen.