Litigation Advice for Framing Your Case for Appellate Victory

Trial counsel have enormous management responsibilities during their case, including preserving issues for appeal. Missing something can cause critical damage to any appeal.

Bringing an appellate specialist onto your litigation team early can pay dividends. These attorneys can assist with pretrial motions, pleadings, help avoid waiving an issue, and other key legal questions.

Get All Objections, Rulings on Record

Every litigator knows the importance of “making your record,” but in the heat of trial, it can fall through the cracks. Sometimes objections are asserted in unreported proceedings at sidebar or in chambers.

To make an adequate record, counsel must restate the objection and any ruling on record when they are back in front of the reporter.

Make it someone’s job on the team to ensure that this happens every time. If it would interrupt the trial’s flow by making the record immediately, make it a habit to put any outstanding matters on the record at the end of the day or first thing the next morning.

Strategic Pleading, Motion Practice

If you’re representing a plaintiff or cross-complainant, it can be useful to include a claim for declaratory relief that goes to the heart of your claims—for example, regarding insurance coverage or duty to defend.

You can then move for partial summary judgment or adjudication on the declaratory relief claim. If you prevail, then move for judgment on the pleadings with respect to any remaining claims that hinge on that issue.

In addition, a freestanding claim for declaratory relief will get calendar preference in some jurisdictions, presenting obvious advantages.

There are also benefits on appeal.

While a trial court’s ultimate decision whether to grant declaratory relief is generally discretionary, appellate courts may nevertheless be inclined to review legal issues embraced within that decision de novo. Declaratory relief claims thus present the appellate court a discrete legal issue it can sink its teeth into—that is, a potential point of reversible error.

Know When a Post-Trial Motion Is Necessary

Although post-trial motions are useful, they are not usually required to preserve issues for appeal. However, there are a few exceptions trial counsel should know.

In some jurisdictions, a post-trial motion is required to preserve an insufficient-evidence argument. In others, a post-trial motion is required to preserve arguments that a damage award was excessive or inadequate. This rule is critical with respect to punitive damage awards, which are usually four times the amount of compensatory damages.

In addition, post-trial motions can be a useful means of ensuring that the record on appeal is complete. For example, a full set of jury instructions requested by each party may not make it into the clerk’s record. If this occurs, it can be included as an exhibit to a post-trial motion.

Finally, post-trial motions can be a way to preserve an issue, like a special verdict, that might otherwise be forfeited for failure to raise it sooner.

Identify if Interlocutory Appeal Is Available

When there’s an important order, always evaluate whether it is immediately appealable. Then assess whether it must be taken immediately to avoid forever losing the right to attack it.

Class certification orders are a good example.

For example, in California, most orders denying class certification are immediately appealable under the death-knell doctrine. Without an immediate appeal, plaintiffs lose the right to challenge the ruling.

The same is not true in federal court, where an appeal from an order granting or denying class certification is available at the circuit court’s discretion. However, there is split authority regarding the collateral-order doctrine, where a party is allowed to immediately appeal an interlocutory ruling. It’s imperative to know if skipping the appeal of the ruling may be reviewed at the end of the case.

Given all trial counsel must manage, it makes sense to delegate responsibility over certain issues to an appellate specialist, especially in high-impact cases. By incorporating these tips, trial counsel will be well on their way to preparing for a successful appeal.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Josephine K. Petrick is a California state bar-certified appellate specialist and senior counsel with Hanson Bridgett’s Appellate Practice Group. She practices in trial and appellate courts across the country.