BITING THE HAND––REDUX
A while back, I wrote a short series of columns setting out my gripes about our appellate courts. I called the series Biting the Hand that Feeds Me, because I earn my bread by winning cases in those courts. According to my business manager (a.k.a. wife), incurring their wrath might cost me some slices.
But feedback from the bench about my criticisms actually confirmed my concerns. The appellate justices who called me were quite gracious and even explained why things tend to be as they are.
I hope I get a similar reaction from this piece, which addresses a related constituency: the trial lawyers who send me cases.
Here’s the problem. When I write a brief or orally argue an appeal, I want to get to the guts of the case––why the trial court was wrong (when I represent the appellant) and why justice would be served by a reversal. Instead, what I often get from the court is some version of: “Was that argument raised in the court below, counsel?”
This is a clear signal that the honorable justices believe they can avoid the time and trouble it would take to deal with the merits of my argument––and simply affirm on technical, procedural grounds.
Given our appellate courts’ heavy caseloads and the added pressures from recent claims that they take too long to resolve appeals, I suppose that’s somewhat understandable.
But it drives me nuts.
I practice appellate law to help achieve justice for my clients. “Justice” means application of the correct law to the correct facts. And I thought that’s what appellate courts are supposed to provide. But “it’s not in the record, counsel” is a roadblock that’s hard to overcome.
Yes, I understand that fairness to opposing parties requires giving them an opportunity to deal with issues––especially factual issues––at the trial court level. And sometimes it seems unfair to ding a trial court judge for a mistake that might have been avoided if the parties had alerted the judge. And I’m prepared to address with these procedural problems on appeal, as best as I can, given the trial court record I’m stuck with. But it doesn’t always work. Then our client ends up getting screwed––even though, from his or her perspective (and mine)––he was right!
It’s hard to blame trial counsel for this. They have a lot on their minds during trial prep, trial, and post-trial motions. Preparing witnesses, getting documents in order and admissible, dealing with in limine motions, and stuff that comes up in the middle of trial. Appeal isn’t the first thing on their minds, and yet they do a good job of making objections to preserve evidentiary issues for appeal. But while juggling all these balls at once, they can’t think of everything.
After the trial is over, however, I have the luxury of sitting back and reviewing the trial court record and saying, “Aha! Here’s the winning argument on appeal!” But often that’s in my head, not in the record I’m reading. I fuss and fume, scouring the record for a hint of a glint of the argument I want to make––hoping to find a few scraps that might convince the appellate honchos that the argument was not waived.
There is a solution: bring in appellate counsel to consult while the case is still in the trial court. Best to begin at the start, during pre-trial prep.
You won’t need input from appellate counsel on everything. Here are the key points where he or she can be most useful:
- Motions for summary judgment and summary adjudication
- In limine motions
- Special jury instructions
- Special verdict questions (a nasty nemesis that––if not done right––can wipe out your favorable verdict and lead to an expensive retrial)
- JNOV motions and motions for new trial.
I know––this will cost your client a few bucks that you might not have planned for. But, believe me, it will be money well spent. It can save a victory, set up an appeal against an unfavorable result, and maybe avoid an appeal entirely. I’ve done this several times, and both trial counsel and client found it worthwhile.
If it’s worth trying, it’s worth protecting on appeal.
And the appellate counsel you choose need not be me. There are plenty of good, experienced appellate lawyers who can help you.