How Trial Lawyers Can Help Appellate Lawyers Win

Moskovitz Appellate Team handles appeals and writs. We’re pretty good at it, but we can’t change the trial court record. We’re stuck with the one you create. Whether we win depends a lot on the record you give us.

If you retain us, here are some things you can do to help us.

1. Order a court reporter for every hearing.

Due to budget cuts, the days when the court provided and paid for a court reporter are over. Now the parties must both (1) arrange for a court reporter to appear, and (2) pay her. To avoid this expense, some lawyers simply dispense with a court reporter.

If the case is worth more than a few bucks, don’t dispense. Winning an appeal without a transcript is very difficult. All presumptions will be against us. We can ask our opponent for an “agreed statement”, but why should he help us undo his victory? We can try to get a “settled statement” from the trial court, but why should she help us get her reversed.

And order a court reporter for every hearing, not just the trial testimony. Often a judge will say something at a hearing on a motion that I can use either to attack or to support her ruling. Help us out by getting her statements on the record.

If a case is worth trying, it’s worth getting a court reporter. You want to keep open the possibility of appealing. Pay the reporter to be there - but you don’t need to pay for a transcript if you win in the trial court and don’t need to appeal.

And here’s an added bonus: A court reporter might make the trial judge pay more attention to the law and the evidence. Some trial judges tend to “take liberties” with the law or the facts if they see no court reporter, knowing that – if there’s no transcript – it’s very unlikely that an appellate court will ever review what they do.

2. Don’t waive your rights.

Get your objections to evidence and motions clearly on the record. Appellate courts like to avoid dealing with issues by deeming them waived. Don’t make us fight that one.

3. Get a ruling.

Sometimes in the heat of the argument, the judge “forgets” to give a clear ruling. Or an issue is discussed and ruled on in the judge’s chambers, with no court reporter present Insist on a ruling in open court, where a court reporter can put it in the record. If it’s not on the record, it’s tough for us to complain about it on appeal.

4. Make an offer of proof.

Often one of our hardest jobs is showing that an error was harmful, i.e., that the result would have been different had the error not occurred. Help us out by making a clear offer of proof when an objection to your evidence is sustained or an in limine motion is granted or denied. Tell the court what your evidence would have shown - and how it was relevant to the issues in the case.

5. If you’re winning, make the trial court look good.

Don’t instinctively fight against everything your opponent wants. If the trial court is about to overrule your opponent’s objection to your evidence or deny your opponent’s motion for something, think carefully about whether the court is right. If you’re not sure, consider withdrawing your opposition. Don’t make us defend a defenseless position on appeal.

6. If you’re losing, make the trial court look bad.

If the draft statement of decision against you is poorly reasoned, don’t automatically object to the poor reasoning. Why give the judge or your opponent a chance to fix it? It might be better to just leave it alone. It’s much easier for us to get a lousy statement reversed than a good one.

Attorneys often believe they can use objections to a proposed statement of decision to talk the judge into changing his mind about who wins. But that rarely happens. So long as the draft statement of decision covers all issues, you don’t waive any rights on appeal by declining to argue that the court got it wrong.

And the reverse is true. Suppose the draft statement of decision is in your favor and your opponent files objections. Rather than file knee-jerk oppositions to each one, ask the judge to redraft the statement of decision to take into account each objection that might have some merit. This might take the air out of what might have become your opponent’s best arguments on appeal.

Appeals turn on the trial court record. Make it a good one.

by M.A.T. Legal Director Myron Moskovitz