A litigator who waits until a notice of appeal is filed to think about the appellate issues in a case will likely lose the appeal. It is important to be conscious of the potential of an appeal throughout the case, starting from the beginning. It does not help the lawyer, or the client, to win at trial, only to have victory snatched away by an appellate court.
Often the issues that will decide an eventual appeal can be identified early on and a trial strategy designed to best position those issues for appellate review. The problem for many trial attorneys, even very good ones, is that they single-mindedly focus on winning before the jury. They fail to realize how their actions—or inactions—will look and sound to an appellate panel. Attorneys must work to break out of this mind-set. Only by consciously preparing during the pretrial and trial stages can one expect to win on appeal.