When we talk to trial lawyers at bar events or CLEs, they almost invariably raise two concerns–even fears–about appellate practice. One is missing an arcane deadline, and the other is failing to preserve an issue for appeal. This suggests that
our marketing strategy is working we can add value by clarifying some of these issues.
As for the deadlines, those ought to be easy enough to deal with, at least in theory. All you need is a copy of the rules, a checklist, and a calendar. As a responsible grownup, you ought to be able to track down a copy of the rules and a calendar on your own. I am glad to provide a model checklist. Just shoot me an email. See? That wasn’t so hard.
Preserving error, though . . . that’s another matter. My partner, Monica Monday, and I have put our heads together and come up with a ten-step guide to preserving issues for appeal. We”ll be sharing those steps in a series of posts, starting today.
Step 1: Develop an Appellate Strategy
Plaintiffs’ lawyers, pay attention: Despite everything you’ve been led to believe, your case does not end at verdict.
If you face a determined opponent, the final order only marks halftime.
So catch your breath, grab an orange slice, and listen up.
The goal isn’t just to win in the trial court. Tricking the jury into awarding your client a bajillion dollars using those Jedi mind tricks that they teach you at the VTLA is useless if you can’t defend that verdict on appeal. Also, you never know when a trial judge is going to do something wacky, like take your case away from the jury. And, of course, there’s always the slim chance that you will lose, and find yourself as the appellant.
For all of those reasons, it’s important to take steps in the trial court to position yourself for appeal. Here’s how you get started:
- Analyze your case early. In particular, identify the key legal issues, and elements of claims and defenses–both your own, and your adversary’s. By and large, it’s the legal issues that will carry the day on appeal.
- Make a checklist. You’re going to find that we’re big on lists and calendars. One of the most useful lists that you can make tracks the elements of proof, both for your case and your opponent’s. Write down what you need to prove to establish your claims and defenses, and what witnesses and exhibits you will use to do so. Do the same thing for your opponent’s claims and defenses.
- Plan–and calendar–your attack and defense. Review your checklists critically. Is a key element of your opponent’s proof vulnerable? Plan a motion in limine to exclude it. Is proof of an element wholly absent? Move for summary judgment. Even if you have no chance of prevailing on a motion in front of a given judge, a motion can still serve a valuable purpose–it can be a marker that sets out your position, and preserves it for appeal later. If a key piece of your evidence is excluded, be prepared to make a proffer at trial.
- Get on file. Once you’ve decided which motions you’e going to file to preserve legal issues for appeal, check the scheduling order and calendar them. Commit yourself to getting them on file.
- Win. While it is important to plan your trial strategy with an eye towards a potential appeal, winning in the trial court is, generally speaking, the best thing you can do for your chances on appeal. Emmert tells me that over the last few years, the Supreme Court of Virginia has granted, about 1 in 5 civil petitions for appeal. Of the appeals granted, about 3 in 5 result in reversals. The actual reversal rate is about 13%. Of course, not all wins are created equal–a victory on a demurrer or a motion to strike is not nearly as secure as a jury verdict. But it’s still better than losing.
That, in a nutshell, is step one. If you’ve got other tips for planning an appellate strategy, please share them. Otherwise, it’s on to Step 2 . . .