Ten Practical Tips for Making Your Case AppealableBy Alex Wilson Albright and Susan Vance
In the heat of battle at trial, it can be challenging to remember that the legal war may not end with the trial court’s judgment. The final victory ultimately may depend upon the record created and preserved for appeal. Here are ten practical tips to help ensure that your case is appealable—and “appealing”—to a reviewing court.
Tip number 1: Make an appellate battle plan. Start by preparing a thorough written analysis of the legal theories at issue in your case. Be certain to include the elements of each cause of action and defense you plan to allege, and of those you anticipate your opponent will raise. Include all applicable standards and burdens of proof for getting to the jury (such as requiring expert testimony on the standard of care). As you analyze, consider whether your case presents any potential constitutional claims. Constitutional issues are of keen interest to appellate courts, and presenting interesting constitutional arguments may increase the chances for a grant of discretionary review or of oral argument on appeal.
Tip number 2: As the battle begins, begin building the record. If it’s not in the record, it didn’t happen. There is nothing more important to an appeal than ensuring that there is an adequate record to present to the appellate court. The trial record is all that the appellate court may consider when deciding appellate issues.
As you move into the pretrial and trial phases, you must make sure that all issues are presented to the trial court, that error is preserved, and that harm from the error is shown on the appellate record. The court of appeals is not the place to try to perfect the trial record: Almost every appellate argument must first be raised in the trial court to be preserved for appeal. This means you must be thorough in your writings to the court and ensure the record is complete, clean, and comprehensive.
Tip number 3: Aim, fire, and engage with an appeal in mind. Because your pleadings will prescribe the universe of substantive issues to be tried—and ultimately to be considered on appeal—plead properly and well. In federal court, make sure the Rule 16 pretrial order properly states all your claims and defenses. Because the pretrial order supersedes the pleadings and controls the subsequent course of the action, Rule 16 may bar review of an issue that was omitted from the pretrial order. Check your pleadings and pretrial order against your battle plan analysis and draft charge to make sure nothing is waived.
Remain mindful of record preservation as you begin to narrow the battlefield through discovery, pretrial motions, and hearings. The history of all pretrial skirmishes will be told at the appellate level only through the record, and you might be relying on these early rulings to establish reversible error.
Tip number 4: Tell a clear and compelling story . . . on the record. Once you are in trial, you (properly) will be thinking about the story that is unfolding in front of the jury. However, you must also be aware that the record will have to tell a story to the appellate court as well.
As you move through pretrial and trial, look ahead to the statement of facts on appeal. Because the appellate court will view your case only through the cold record, the statement of facts is a critically important section of an appellate brief: It must tell a coherent tale, preferably an interesting one. So plan your presentation of evidence at trial so that you will have fully fleshed out facts on appeal. There is nothing more tedious in preparing an appellate brief than searching the record for that one small—but now essential— fact that you are certain was mentioned somewhere, sometime.
Tip number 5: Make good objections and get a ruling . . . on the record. Here are the four saddest words you can hear from an appellate court: “Great argument; not preserved.” To preserve the issue for appeal, you must raise an objection, ask for a cure, and secure a ruling. You must ensure that the trial record accurately reflects timely, meaningful objections, made on clearly stated grounds and followed by a ruling by the court (or a clear request to rule).
Pay attention to the timeliness of your objections. Generally, the objection must be made as soon as the objectionable situation arises. Timing is key: A premature or late objection is like no objection and does not preserve error. When in doubt, object. If an aligned co‑party is making the objection, motion, or request, and you want to join, be sure that the record shows it. If you end up being the only appellant, you will want the benefit of the other party’s objections. And here’s a cautionary note: A key record-preservation mistake is “inviting error” by relying upon evidence that you have objected to at trial.
Tip number 6: Keep the record complete. To present your case fully on appeal—and to preserve clearly an error for review—you must be sure that the appellate record be complete, reflecting all substantive issues argued, any complaint about error and its preservation, and the harm that error caused.
To begin, make sure the clerk has filed all your pleadings and motions, as well as all orders, the jury verdict, and the judgment. Get a file-marked copy for your file. Ensure that exhibits are actually admitted into evidence or made part of the record as excluded. Exhibits that are merely marked and offered are not part of the record on appeal. If the trial court excludes an exhibit, ask the court to admit the document as a “court exhibit” so you can show the appellate court what was excluded in order to obtain reversal on appeal. An erroneous exclusion of any other type of evidence likewise is generally not reviewable on appeal unless the proponent makes an adequate offer of proof. Keep your own list of all exhibits as they are offered into evidence, indicating what has and has not been admitted.
If you go off the record for conversation and sidebar discussions, make sure you request to be put back on the record when ready. Also, make sure you memorialize any requests and rulings that occurred off the record when you go back on. Particularly, make sure the court reporter is recording your objections, and see to it that the court reporter’s fingers are moving when you want what is being said to be on the record.
Tip number 7: Keep the record clean. Correct any misstatement of the court or opposing counsel immediately—these can come back to haunt you on appeal. Also, take remedial measures to clean up prejudicial evidence in the record and preserve the error if it remains: a motion for mistrial (if prejudicial evidence is before the jury), a motion to strike (if evidence that should not be in the record finds its way into the record), or a request for curative instructions to the jury (if the court denies either of the other two motions). Let the court know if these instructions are insufficient, and object if denied.
Tip number 8: Craft the perfect jury charge and preserve objections to the court’s imperfect one. Many appellate issues arise from the court’s instruction to the jury. As a result, error in the court’s charge is among the most likely sources of reversible error on appeal.
Generally, parties are presumed to have consented to erroneous submissions in the absence of an objection by either party, and a party cannot claim error in the court’s failure to give a particular instruction if the party did not request that instruction. Similarly, a party cannot claim that a correct jury instruction was too general or incomplete unless it requested a clarifying instruction. Questions, instructions, and definitions submitted to the jury are restricted to those raised by the written pleadings and the evidence—an opponent’s proposed submission of an unpleaded theory of recovery or affirmative defense should be the subject of an objection.
Specificity in objections is the key to preserving arguments about charge error: A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. To avoid waiving complaints of harmful charge error, be certain to make all objections to the charge on the record (even if those objections have been thoroughly discussed in an informal, off-the-record charge conference). Object before the charge is read to the jury and be sure to obtain rulings on the record to all oral objections to the charge. Another cautionary note: An appellant cannot complain about an error that it created or invited. A classic example of “invited” error is an erroneous jury instruction that an appellant requested—parties may not request a submission and then object to it.
Tip number 9: What is the best way to set the stage for a successful appeal? Win at trial and be the appellee! One exception to this rule is to be the appellant if you have a default judgment.
Tip number 10: Preserve appellate arguments post-trial, and prepare for attack on the appellate front. Preservation of the record after verdict and judgment is critical to an effective appeal. It is essential that post‑trial motions be carefully drafted to preserve appellate arguments. These motions include motions for judgment, motions for judgment notwithstanding the verdict, motions to disregard certain parts of the jury’s verdict, motions for new trial, and motions to modify, correct, or reform the judgment. If your trial was before the court rather than a jury, carefully follow your jurisdiction’s rules for preserving appellate complaints about the court’s findings of fact and conclusions of law. Also, be mindful of time limitations for filing post-trial motions. In both state and federal courts, generally a narrow window exists to take this important step on the way to appeal.
Legal issues, which are reviewed de novo, have better odds for reversal than fact issues, which will be reviewed more deferentially. And post-trial motions are a good time for losing parties to find constitutional issues, which may help you obtain discretionary review in higher-level appellate courts as well as improve your chances for a grant of oral argument.
Victory in litigation is often elusive—a win in the trial court can become a loss on appeal, and vice versa. A successful lawyer must focus not only on the trial but also on the possibility of appeal. This requires early planning and constant vigilance.
Keywords: Trial procedure, appeals, litigation
Alex Wilson Albright is an associate dean and senior lecturer at the University of Texas School of Law. Susan Vance is an appellate lawyer in the Austin, Texas, office of Alexander Dubose & Townsend.
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