TRIAL COURT WINNERS CAN BECOME APPELLATE COURT LOSERS

Besides handling appeals, I also consult with trial lawyers before and during trial – about how to set things up for a potential appeal, either to protect a trial victory or to overturn a trial loss. Things like how to draft a special verdict form that helps lay people produce clear findings that are not inconsistent with each other – and thereby avoiding an expensive new trial. And, of course, help in winning summary judgment motions and the like.

And here’s something you’d might not expect. Often I’ll advise them not to take some action that seems to be a winner.

It comes up like this. Say I’m advising a plaintiff’s lawyer. She tells me that, for some reason, the judge would be receptive to granting a certain motion – like a demurrer, a motion in limine to keep out some of defendant’s evidence, or motion for summary adjudication of some issue. Why? “This judge really likes us.” Or feels the opposite about the defendant or defendant’s counsel. 

“Why” doesn’t matter much. What matters to me is whether winning the motion could lead to reversal on appeal. Reversals are expensive – very expensive. Your big-bucks judgment might be wiped out – sometimes forever, and sometimes subject to a costly retrial. Maybe your damages will be trimmed. Occasionally you might even have to pay the other guys’ attorneys fees. And if you squeak by the appellate process, you will lose a lot of time collecting your reward – at least a year, probably more. All told, not a pretty picture. Part of my job is to help you avoid these horrors, by building a trial court record that is as bullet-proof as possible on appeal.

I’ve been on both sides of this problem. 

I’ve won appeals where opposing trial counsel did what many trial lawyers do: fight like hell every chance you get, often on flimsy grounds, and once in a while get lucky – a busy trial judge buys a weak argument. Nice – for me. Right into my appellate wheelhouse, and I slam it for a reversal. 

Then there’s the other side. Once, I was called into a case by a defense attorney who had just won a dismissal via demurrer. The plaintiff filed notice of appeal, and the defendant’s lawyer asked me to defend the judgment in the appellate court. I read the file – and found it troubling. Defense counsel’s argument supporting the demurrer – and the trial court’s order sustaining the demurrer – were supported by “facts” that were not alleged in the complaint (and not judicially noticed)! I told him, “You’re a damn good trial lawyer, and this shows it. Facts not alleged in the complaint are irrelevant on demurrer.  You sure put one over on the trial judge.”

He beamed – until I said: “Sorry, but I can’t beat this appeal. No one can. It’s going to be reversed. Better stipulate to undoing the trial court ruling.  Or settle.” 

He was shocked. “I won! And you told me that appellate courts reverse less than 20% of the time!” 

“Yes”, I replied. “And this will be one of the 20%.” 

He rejected my advice, and decided to deal with the appeal himself. The reversal came down a year and a half later. 

I admit that my concern is not a trial lawyer’s only concern. Appeal is a long way off. He’s now in the middle of a war in the trenches, where winning even a small battle can demoralize his opponent – and possibly lead to a favorable settlement. 

OK, I get it. But at least throw appellate considerations into the mix of what you think about – and maybe get some input from appellate counsel before you decide.

And this: try to think of some other way to get what you want.  In the demurrer case I just described, the defense lawyer might have shown a bit of patience. If he had waited a few weeks, it would have been pretty easy for him to launch his new facts in a motion for summary judgment instead of a demurrer. He would have won, and his victory would have been appeal-proof. Simple, cheap – and legally correct.

Similarly, don’t be so quick to file a motion in limine to keep out the other guy’s evidence, where the legal grounds supporting the motion are not strong. If you win the motion, you might be handing him an appealable issue, gift-wrapped. Maybe let the evidence go in, but think a little harder about how you might rebut or diminish it, with your own evidence or argument. 

It might help to put things in perspective. Trial lawyers juggle many balls at once – and the balls keep changing as the case moves along. Appellants’ lawyers are on a different wave length. They scan the entire trial court record, seeking at least one significant judicial mistake. They might find it during the trial, after the verdict – or even way back at the beginning, before trial, something that happened so long ago the trial lawyer has forgotten about it. That single mistake might be enough to get what the appellant’s lawyer seeks: a reversal. 

So try to avoid encouraging the trial court judge to commit that mistake. It might make everything you do afterwards worthless.