What They didn’t teach you at the Law School
Law School prepares you to think, write and research like a lawyer, but once you’re at the door of a law firm or a courtroom, there’s a whole new set of skills you need. The present series of articles aims to enrich a new lawyer with all these skills in order for him/her to excel.
In the heat of battle at trial, sometimes we forget 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. A successful lawyer, therefore, must focus not only on the trial but also on the possibility of appeal. This requires early planning and constant vigilance.
Start by preparing a thorough written analysis of the legal theories at issue in your case. Ensure that you include the elements of each cause of action and defence you plan to allege, and of those you anticipate your opponent to raise. Also 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.
Once you’ve started, begin building the record. 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 pre-trial 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. This means that you must be thorough in your writings to the court and ensure that the record is complete, clean and comprehensive.
Since your pleadings prescribe the substantive issues to be tried and ultimately to be considered on appeal, plead properly and well. Remain mindful of record preservation as you begin to narrow the battlefield through discovery, pre-trial motions, and hearings. The history of all pre-trial 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.
As you move through pre-trial and trial, look ahead to the statement of facts on appeal. The appellate court will view your case only through the record; therefore, the statement of facts is a critically important section of an appellate brief. Plan your presentation of evidence at trial so that you 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.
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. A premature or late objection is like no objection and does not preserve an error.
To present your case fully on appeal and to preserve clearly an error for review, ensure that the appellate record is complete, reflecting all substantive issues argued, any complaint about the error and its preservation, and the harm that the error caused. So make sure that the clerk has filed all your pleadings and motions, as well as all orders 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 that you can show the appellate court what was excluded in order to obtain reversal on appeal.
Keep the record clean. Correct any misstatement of the court or opposing counsel immediately. Also take remedial measures to clean up prejudicial evidence in the record and preserve the error if it remains.
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. Be sure to obtain rulings on the record to all oral objections to the charge.
Preserve appellate arguments post-trial, and prepare for attack on the appellate front. Preservation of the record after 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 new trial, and motions to modify, correct, or reform the judgment. Also carefully follow your jurisdiction’s rules for preserving appellate complaints about the court’s findings of fact and conclusions of law. Further, be mindful of time limitations for filing post-trial motions.
