Common Appellate Problems in the Trial Court

The important issues on appeal are often very different than the important issues in the trial court. Trial lawyers are primarily focused on the trial itself, not a future appeal. Unfortunately, trial lawyers sometimes overlook precautions in the trial court that can greatly enhance their chances of winning on appeal. This discussion focuses on some of these common problem areas, and also cautions appellate lawyers about being too smug about some of these problems.

Date sent: Sun, 2 Nov

What are the most common or most significant errors trial lawyers make that result in problems on appeal?

Failing to make evidentiary objections at trial is obviously a big one.

In California, another common problem that I see in bench trials is failing to ask for a statement of decision. I assume other jurisdications have something similar. In California, a party can request a statement of decision after the judgment. In it, the judge will explain his factual conclusions and legal reasoning.

Without a statement of decision, the appellate courts will affirm against a substantial evidence challenge if there is *any* factual support for the judgment. But with a statement of decision, the appellate courts are more willing to look at the specific factual theory the judge decided the case on.

Any other nominees for most common or significant trial error?

Date sent: Mon, 3 Nov 97

Making objections on the record, e.g. to jury instructions. But we (appellate counsel) can never know whether these are "errors" in the sense of procedural waivers of legal issues or "errors" in the sense of failing to see a legal issue that ought to be preserved (procedurally).

Date sent: Mon, 3 Nov 97

Although these "common errors" are legion in appeals, the one we run up against constantly is the failure to raise a legal argument in the trial court. Illinois Courts are becoming better readers and searching the record to determine if arguments on appeal were raised and addressed in the trial court.

The Seventh Circuit Court of Appeals is very interested in whether there is subject matter jurisdiction. By way of example, the Court asked, sua sponte, at oral argument whether a large law firm we represented had any partners that were citizens of a state far removed from the state of the defendant's citizenship. Although jurisdiction was not contested by the defendant, at either the trial or appellate levels, the Court required the preparation and filing of an affidavit establishing the citizenship of each of the firm's over 200 partners. This, however, is not uncommon.

Date sent: Wed, 5 Nov 97

I find that failure to make an offer of proof is another common error.

Date sent: Wed, 5 Nov 97

I think the most common error I see in Missouri and Kansas is failure to make a proper offer of proof to preserve the error for review. Many attorneys fail to make any offer of any kind. More common is that the attorney merely recites into the record what he or she expects the evidence to be. Neither preserves the issue for appeal.

At the very least, sworn deposition testimony must be read into the record. Better practice would require putting the witness on the stand for testimony outside the hearing of the jury and offering exhibits. Only then can the appellate court judge whether the error was prejudicial and possibly reverse.

Date sent: Thu, 6 Nov 97

There is another side.

Lawyers can easily alienate a jury by making objections to harmless questions that are slightly defective, and sometimes one's opponent can open the door to fantastic things by getting something that should not be admissable in. A trial lawyer who does not know when to waive an objection by silence is not a good trial lawyer. If the judge is railroading your client there will be several good opportunities to object to something truly outrageous and no need to make constant objections to every little mistake.

I once had a criminal case (I won a reversal on all fifteen or so counts) in which the Judge made over thirty reversible errors. I was truly overloaded with things to brief.

Date sent: Thu, 6 Nov 97

Wait a minute -- It certainly makes sense to discuss common trial mishaps, But I don't think trial-lawyer bashing should be our sport of the day. Having tried a few cases before juries, I have a very healthy respect for what trial attorneys and trial judges do. Trial work requires consideration of a million things at the same time. It is very easy to miss things in the heat of the moment. Moreover, while we can discount the idea that attorneys don't want object too much for fear of ticking off the jury, it is a very real concern. And a good outcome at trial is the first and best appellate strategy.

I view the trial attorneys with whom I work as my constituents, and I think that the best way to serve them is to have a healthy respect for the difficulties they face in doing their work. I know there are a number of judges on our appellate courts who are sympathetic to that view, having been trial judges or trial attorneys themselves. In our world, trials are like the ER. Its easy to criticize judgments after the fact, but it really is one big exigent circumstance.

Date sent: Thu, 6 Nov 97

I wholeheartedly agree with [the above] comments. I think that fledgling appellate lawyers have a tendency to be smug and judgmental about the way that a trial lawyer has handled things. (I know I was that way, but I think I've gotten over it over the years.) With a little more experience (at both levels), the appellate lawyer learns to appreciate the difficulties and pressures faced by trial counsel, and learns to deal with the "errors" in a more forgiving and matter-of-fact way. I am merely echoing what has been said, but frankly, I don't think it could have been expressed any better. If you absolutely must bash trial counsel's tactics, errors, etc., just make sure it's the other side's trial counsel.

Date sent: Thu, 6 Nov 97

I agree. It is a lot easier to second guess someone after the fact and point out all they failed to preserve. Unfortunately, I no longer get that opportunity in my firm, because I usually go to trial with them to protect the record and make sure the objections will hold up, etc. I have learned that it is a lot harder to make all of those decisions on the spot than it was at my desk reading the record months later. I might add that recently one of my friends,a trial attorney, went to one of our appellate seminars and thought there was way too much trial attorney bashing. On his return he remarked that he resented how many appellate lawyers seem to act like they believe they are superior to trial lawyers. I have seen this myself, and as an appellate lawyer, I don't believe it serves us well to get fall into that rut.

In Texas they have revised the appellate rules again, and it is often pointed out that they don't call them TRAPs (Texas Rules of Appellate Procedure) for nothing. More and more attorneys are using appellate specialists to handle their appeals, and more and more firms are developing appellate sections. As the need grows, many appellate specialists have joined together to form appellate only firms.

Sent: Thu, 6 Nov 97

I agree. Its easy to second-guess a trial lawyer when you have the luxury to think about a legal problem, do some research, think about it some more, do some more research, etc.

Date sent: Mon, 10 Nov 97

As a fledgling prosecutor, I had the good fortune to start in trials briefly, spend 5 years in appeals, then spend 7 years in a special trial unit, return to appeals and now into private appellate practice. The best thing I took from my appellate experience to the trial court was the knowledge of what the record looks like when it is all said and done. No record, no appellate issue.

Just as important is "how" something looks on the record even if it has to be made outside of the presence of the jury. Getting necessary items on the record sometimes takes a bit of "theatre" to get the jury to understand that you are doing your job. Frankly I found jury trials boring and used to get very sleepy during jury selection and instructions - a bad habit for a trial attorney. Trial attorney's should pay attention to the instructions -- the danger being that you have heard them before and can recite them in your sleep -- as soon as you doze off, you will miss an objection. We all know what no objection can mean.

Date sent: Mon, 10 Nov 97

I first learned this lesson shortly after law school, when I had the good fortune to spend some time working in the chambers of a Ninth Circuit judge who had previously been a trial judge (in both the state and federal systems). He understood the realities of trial as well as anybody, and educated me in the realities of litigation and how they readily lead to the imperfect records we always saw. As much as I admire and respect my law professors, few of them had been able to impart this perspective. Sadly, I think a number of appellate judges lose sight of this reality, as do practitioners.

By the way, having spent many years as on the trial bench, the judge for whom I worked didn't like references to trials as "proceedings below" or to trial courts as "lower courts"; I saw a lot of red ink on my drafts and memos because I was already accustomed to such terms. Respect for trial judges is probably just as important as respect for trial lawyers.

Date sent: Tue, 11 Nov 97

The earlier point reminded me of a statement by a former justice of the New Jersey Supreme Court, Robert Clifford: "When in a querulous mood, our colleagues at the trial bench sometimes grumble that while trial judges devote their energies to the pursuit of justice, appellate judges spend their time hunched over the record, pawing through it in an unrelenting search for error."

The reference to "appellate judges" can also be to "appellate attorneys," and I think that trial and appellate judges alike often view appellate attorneys as myopically scrutinizing the record for error without a sense of the broader context of whether the process and result were, as a whole, fair and just.

To return to the original topic: We have all had ocasions where we wish that trial counsel had preserved an objection that was not preserved. And, sometimes, those omissions have been doozies. But sometimes, we, as appellate counsel, need a reality check. Often, I think it's just as well that a potential objection discovered in our "unrelenting search for error" was not made below. If it did not appear significant to trial counsel during the trial, it likely would not have been important enough in the overall scheme of things to be persuasively argued on appeal anyway.

The above discussion was taken from the Appellate Law Discussion list and edited.

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