Savvy trial lawyers keep one eye on the trial court and another on the court of appeal. They want to win at trial, of course. But whether they win or lose at trial, they also know they need to create a record that will make the best case for the client before the appellate court. Increasingly, trial lawyers and clients are calling on appellate counsel to help set a case up for appeal early in the proceedings, well before a notice of appeal is filed.
Appellate lawyers’ expanded consulting role calls for coordination with the trial team. To consult, appellate counsel also must have a firm understanding of when objections must be made and legal theories advanced and when it would be merely preferable (but not necessary) to do so. Here are 10 “hot spot” areas to consider when working with trial counsel to enhance the record on appeal.