“Always have an appellate attorney on your trial team.” That is the best advice for making your record and preserving issues for appeal. An experienced appellate attorney can help you to navigate the sometimes conflicting best practices of trial litigation and appellate advocacy, effectively preserve the issues, and win your case. If you don’t have this luxury, keep the following tips in mind.
Rule 12 of the Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure both provide that certain motions must be made at specific stages in the proceedings. Failure to meet those deadlines may compromise your case, and all but guarantees, at best, plain error review when the issue is raised for the first time on appeal. Meeting those deadlines, and advancing all of the positions you have decided to pursue is the first step in effectively preserving the issues for appeal.
The letter of the law teaches that an absence of jurisdiction can be raised at any time. However, the application of that rule is not always so straightforward. Yes, jurisdictional issues can be raised at any time—but do not wait! One problem with waiting to raise jurisdictional challenges is that the appellate court might disagree with your argument that the issue is jurisdictional and, therefore, refuse to consider your argument. Why take the risk?
The motion practice and time associated with raising jurisdictional issues that are not clear-cut may be daunting, but it is always worthwhile. Identify jurisdictional arguments early, raise them as soon as they are identified and develop the record for appeal. If you don’t have an appellate attorney on speed dial, contact a colleague or a mentor for direction.
Object, object, object! Appellate attorneys will often preach this. This could be regarded as poor trial advocacy and distracting for your case, so be strategic and thoughtful. Consider possible theories of the case before the trial, keeping in mind how it would play out in an appeal can help you identify the necessary objections. Narrowing your theory of the case and identifying key evidence in support of that theory will eliminate the need to object to everything by allowing you to focus on preserving the issues and errors most relevant to the theory you have chosen.
Worse than being limited to plain error review is having your brilliant appellate argument rejected as invited error. This issue frequently arises with jury instructions. Attorneys generally craft and review jury instructions to encompass the elements of the crime or cause of action and the facts of the case. Appellate attorneys will also consider asking for instructions supported by novel theories or lesser known arguments that support your position. Even if the trial judge rejects the requested instruction, you have made your record, preserved the issue, and averted a possible finding of an invited error on appeal.
Motions for judgment of acquittal, judgment as a matter of law, new trial, remittitur, and reconsideration all have their use in the preservation of issues for appeal. As with many pretrial motions, they must be made at the appointed time or risk being waived. This is one area where trial attorneys and appellate attorneys are likely to agree on a strategy for preserving the record. However, it remains useful to have an appellate attorney conduct a research-oriented review to help elevate your pre-verdict and post-judgment motions from good to great and ensure that, at these final stages of the trial proceedings, you have not missed any issues worth pursuing.
Making your record and preserving issues for appeal involves more than “objection!” and raising issues. It also involves an assessment of the case as a whole, including its strengths and weaknesses; assessment of the current state of the law, both as it supports and undermines your case; and making tough decisions concerning the issues you must, should, could, and should not pursue. Whether it is with a colleague, an attorney at another firm, outside counsel, or your inner appellate attorney, strategically approaching these five ways to make your record and preserve issues will benefit both you and your client, at trial and on appeal.
