1. Assert all applicable legal theories in the trial court. Consider motions in limine as avenues for doing so. Legal theories should be preserved through careful drafting, strategic planning, and filing of key documents throughout the life of the case. By consistently asserting legal theories throughout the case, you demonstrate that your client seriously believed in these theories even before there was an appeal—and that the appellate court should take them seriously too. By pursuing key issues at every possible turn, you also avoid claims of waiver. Consider whether any of the following vehicles would be appropriate to raise your issues: the complaint and answer, demurrer or motion to dismiss, motion for summary judgment, trial briefs, motions in limine, motions for judgment on the pleadings, non-suit or directed verdict, and jury instructions. Motions in limine are especially appropriate vehicles for seeking to restrict or preclude evidence.
2. Request jury instructions on key issues and object to others. If you want to assert a legal theory at trial, you generally must request jury instructions that fully and properly embody that theory. Make sure you get a clear, unmistakable ruling on your proposed instructions. In some jurisdictions, if you wish to challenge jury instructions requested by the other side, you must clearly state on the record both your objection and the reasons for it. In other jurisdictions, instructions given by the court are deemed objections.
3. Make an offer of proof concerning excluded evidence. An appellate court searches not only for error but also for prejudicial error, or error that would have made a difference in the outcome of the proceeding. Without an offer of proof, it can be difficult for an appellate court to know whether the exclusion of evidence affected the outcome of the case. Make it clear for the appellate court, e.g., “If this witness had been allowed to testify, or if this evidence had been admitted, my client would have had evidence on a key issue, which was otherwise lacking.” Consider submitting a written offer of proof, which details the substance, purpose, and relevance of the proffered but excluded evidence.
4. Obtain audible answers from witnesses and verbally record visual presentations. Remember that the appellate court will not receive a video of the trial. The record on appeal consists of written filed documents, exhibits, and the trial transcript. Therefore, if a witness points to an exhibit and says “right there” in response to a question, ask the witness to clearly describe where “there” is on the exhibit, or provide a description of where the witness is pointing yourself.
5. Make sure depositions played or read at trial are adequately reflected in the record the court of appeal will see. Video depositions are more frequently used at trial. Often, these are not transcribed into the record; the trial transcript merely reads “Video deposition of Witness X played.” Make sure the testimony the jury saw, and the designated lines and rulings on objections thereto, are adequately reflected in the record. Ask the court reporter to transcribe the lines of video deposition testimony that are played to the jury. Submit as court exhibits a marked paper copy of the deposition and a copy of the video deposition as played to the jury.
6. Properly identify evidence. This seems ministerial, but it is important. Make sure all of your exhibits are properly marked as to both identity and origin and are stamped for identification and/or admission. At the end of trial, make sure you know where the original exhibits are (i.e., with their respective trial counsel or with the trial court). Keep careful track of them and ensure that the original exhibits are available to be transmitted to the appellate court.
7. Make complete and timely objections and obtain rulings on them. Obtain a record of all sidebar or chambers conferences. To avoid any claim of waiver, objections should be made immediately and the specific nature and grounds for the objection should be stated, along with some description of the nature of any prejudice if appropriate. Be alert to any improper arguments by counsel or improper conduct by the judge or jury; object to those immediately. As to improper argument by counsel, make the objections specific, move for a mistrial, and ask the judge to give the jury an admonition to cure the prejudicial effect of the objectionable argument. If any objections or rulings are made at an unreported sidebar or during a chambers conference, make sure what transpired appears on the record. Consider summarizing what transpired at sidebar or in chambers before the court reporter, or submitting a written summary of the sidebar or chambers proceedings, which will appear in the court’s file.
8. Ask to clarify ambiguous trial court rulings. Sometimes the scope of a trial court’s ruling is unclear. Ask the court to clarify it so that both you and the appellate court know the ground rules. Follow up, too, on conditional evidentiary rulings. Sometimes a trial court admits evidence subject to a later motion to strike. The objection to that evidence may be waived unless the motion to strike is actually made and ruled upon at trial.
9. Object to the form of the verdict or questions to be asked in a special verdict before deliberations begin. Objections to the form of the verdict should be made before the jury begins to use the verdict form in deliberations.
10. Make post-trial motions. In some jurisdictions, post-trial motions are essential to preserve issues for appeal. In California, for example, issues concerning excessive damages or jury misconduct must be raised by post-trial motion. In other jurisdictions, such as the federal courts of appeals, motions for directed verdict or for judgment as a matter of law may be required during trial in addition to post-trial motions made.
Keywords: litigation, appellate practice, trial record
Mary-Christine (M.C.) Sungaila is a partner at Snell & Wilmer in Orange County, California.
"What Appellate Lawyers Should Know About Making a Trial Record," by Mary-Christine (M.C.) Sungaila, 2011, Appellate Practice Journal 30:2, p. 4. © 2011 by the American Bar Association. Reprinted with permission. All rights reserved.