Many appeals are won or lost before the notice of appeal is even filed. Trial counsel are accordingly wise to focus their litigation strategies not only on trial preparation but also on the eventual appeal. Working with an experienced appellate attorney earlier in the process—which is an option many trial lawyers and counsel overlook—can pay significant dividends.
Like trial lawyers, we appellate specialists spend years honing our craft, perfecting our brief writing, our oral arguments and our in-depth research and analysis. But we also bring a clear and fresh perspective to cases, along with an encyclopedic knowledge of appellate standards and procedures. Through years of working with colleagues at various stages of litigation, I have seen the value that appellate attorneys can add to a case, the ways we can help with preservation, record development, evaluation of options for interlocutory review and taking the burden off of trial counsel when briefing is needed midtrial.
Trial attorneys must remember two hard facts: 1) Even the best appellate attorneys are largely constrained by the trial record; and 2) The best way to win on appeal is to win at trial. Thus, not only should a trial lawyer litigate their entire case with the closing argument in mind, but litigants also must plan early for ultimate success on appeal.
Identifying and framing issues
How early should a litigation strategy be informed by plans for appeal? As soon as possible.
Often, this simply means thinking through the mix of legal and factual issues that a dispute presents, honestly identifying strengths, weaknesses and open questions of law, and preserving all issues along the way.
Trial lawyers are accustomed to thinking this way, but thinking about these issues from the perspective of appellate review can shed valuable light on litigation strategies. For example, a party confident in its positions may prefer to emphasize factual questions that will be reviewed under the deferential “substantial evidence” standard, while a party that perceives strong headwinds—difficult facts or a hostile judge—may want to start focusing on legal issues that the appellate court will review independently.
In some cases, however, especially when representing sophisticated parties, it may be possible to identify critical legal questions and frame an entire case to focus on those questions from the beginning.
For example, a client in one case I litigated faced a recurring issue governed by statute. A recent court of appeal decision construed that statute in a novel way that made managing the client’s business considerably more onerous. The client identified a circumstance that raised the issue cleanly—without other unrelated factual or legal issues—and pursued litigation with my aid, anticipating a loss at trial, to correct the state’s decisional law regarding this statute on appeal and, if necessary, in the California Supreme Court.
Opportunities like this are rare. But a party forced to fight on terrain it has not chosen may still carve out an important question of law, from an otherwise messy dispute through a claim or cross-claim for declaratory relief. Pursuing such a claim can set the stage for a dispositive motion on the chosen legal issue and give the case calendar preference in many jurisdictions.
Ensure the record is complete
Preservation of evidentiary issues and legal arguments during litigation is critical to success on appeal. As a general matter, this is a concept with which trial lawyers are intimately familiar. But reviewing trial records in appeal after appeal reveals a few areas where appellate positions get lost—or saved—along the way.
The greatest risk to preservation is what might be called the fog of war. All lawyers know that they need to preserve evidentiary objections, make offers of proof and secure court rulings on their issues. But even the best and most organized trials are chaotic, and things can get missed. Tasking a member of the trial team with anticipating issues and ensuring objections and offers of proof are made and ruled upon will reduce that risk, especially when trial counsel makes the tactical decision not to nail down a preservation issue to avoid disrupting the flow of trial.
Another common preservation problem arises from discussion and resolution of issues in sidebars and in chambers—an increasingly dangerous area in contemporary practice with remote hearings and informal email communications with courts and judges. When issues are presented or important observations made outside the presence of a court reporter, it is critical to ensure they are repeated on the record, either through a spoken discussion, a pocket brief or both. Here again, assigning responsibility to a team member, especially one who is not directly responsible for witness examination, can add real value.
In another case, I was called in to assist a trial team after an employee of one party’s attorney was observed openly coaching a critical witness through gestures and signals from the back of the court’s gallery. (Yes, really.) The trial judge noticed the coaching and ordered the employee to leave the courtroom without explanation.
Conversations then occurred in chambers regarding the behavior that the judge observed, and the judge allowed the opposing party a very limited opportunity to question the witness about what they observed. Options on the table included mistrial, an immediate petition for appellate writ and post-judgment appeal. But the reporter’s transcript failed to reflect either the coaching itself, which was nonverbal, or the judge’s in-chambers comments about what occurred. I was called in to help trial counsel prepare comments and written filings to capture that information for the record.
Another area where preservation can be achieved—or lost—is in post-trial motions. Generally, such motions are not strictly required for preservation—save for arguments about the sufficiency of evidence in federal court and a few other areas in some state jurisdictions—but they can be an opportunity to catch anything that has been lost during trial.
As one cautionary example, an attorney litigating a case in California found himself facing strange and erroneous rulings from the trial judge, and it became increasingly clear that the judge had developed and was acting on a bias against counsel. On appeal, however, the rulings were subject to a deferential standard of review and difficult to overturn on their own merits. The trial judge’s apparent bias might have improved the case on appeal, but that concern was not preserved through a new trial motion.
Identify mandatory interlocutory appeals
Appellate attorneys spend most of their days disappointing colleagues who want to challenge adverse trial court decisions right away. Final judgment rules in most jurisdictions place strict limits on interlocutory appeals. A few orders, however, are not only immediately appealable but also must be appealed to preserve related arguments.
Jurisdictions’ rules vary in this area, but often a ruling subject to immediate appeal “as of right”—that is, an interlocutory order that can be appealed and does not require the court’s permission—or one that necessarily becomes moot by entry of judgment must be appealed immediately or forfeited. Litigators should be alert to these traps for the unwary and double-check whether an important ruling falls into this category of “use it or lose it” appeals.
Like everything in litigation, planning ahead is critical, and an appellate specialist can help ensure, from a case’s inception, plans and strategies reflect the widest range of options and possibilities.
Adam Hofmann is co-chair of Hanson Bridgett’s appellate practice and an appellate specialist, certified by the California Board of Legal Specialization. He represents cities, counties and special districts in writs and appeals relating to public finance and revenue measures as well as land use, civil rights, employee benefits, labor standards and election law. And he represents private businesses and individuals in civil appeals of all kinds. He has briefed and argued cases in the 9th Circuit Court of Appeals and every district court of appeal in California, and has filed merits briefs in two U.S. Supreme Court cases. Outside the office, Hofmann also serves as the chair of the state bar’s Commission on Judicial Nominees Evaluations. He has taught courses in land use and local government law at the University of San Francisco School of Law, and coaches nationally competitive moot court teams at the University of California at Davis King Hall School of Law.
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