A Few Things Trial Lawyers Wish They Had Known Before The Appeal

Preparing an appeal sometimes starts before the trial is over. In fact, some of the most effective appeals are developed while the trial is progressing. Our law practice consists not only of appellate litigation but also consulting. The reason for this is simple: trial law and appellate law are vastly different. And while your trial attorney may have built a compelling case, an appeal is always possible.

As part of our appellate consulting services, we advise California trial attorneys on how best to position a case for appeal. These are a few of the issues trial lawyers wish they’d known about before the appeal. Gusdorff Law can counsel your trial team on these and other matters.

Always Be Mindful of the Record

Here’s a basic rule of thumb for all appeals: if something isn’t in the record, it didn’t happen. This must be at the forefront of a trial attorney’s mind. Appellate courts need to know what the trial court did, but cannot do so without a record. Generally, that includes a transcript of the trial and whatever was filed. But here again, the mistake many trial lawyers make is assuming that’s all that might be in the record. That leads to the next issue.

The Record May Be More Than What You Think

The court transcript and filings are two key components of the record on appeal. They are not, however, the only matters to consider during trial. Jury instructions, for instance, can have a major impact on the outcome of the case. Some trial lawyers agree to waive the reporting of the reading of the instructions. But the Court of Appeal may need to know how the trial judge instructed the jury. Our firm can discuss with you the best way to preserve everything needed for the record on appeal.

The Difference Between a Voluntary and Involuntary Dismissal

An involuntary dismissal of an issue can be appealed; a voluntary one generally cannot. This is a basic rule of appeals. But trial lawyers are sometimes convinced that a claim is too weak and should be thrown out. Doing so could be costly. A claim that seems weak at the time could potentially be strengthened rather than voluntarily dismissed. You may not be able to revive it on appeal if you choose the latter option.

Be Careful With Special Verdicts

Special verdicts can potentially be powerful tools at the trial level. When used correctly, they allow the jury to only find the facts and leave judgment to the court. But the risk of making a critical mistake abounds. The special verdict may be internally inconsistent or leave out a material element. If this happens, the judgment will likely be reversed on appeal and a new trial ordered. No trial attorney wants this.

How to Properly Handle Exhibits

This is a major minefield for trial lawyers. An exhibit can play a significant role in the court’s judgment. But not all exhibits are properly handled. Some attorneys neglect to formally admit exhibits. An attorney also needs to make sure that the complete set of exhibits is maintained. That includes ensuring that if the court returns your exhibits, none are missing. Careful handling of exhibits ensures the appellate court can refer to them if needed.

Appellate Consulting Can Make All The Difference

These are only a few of the issues trial lawyers wish they’d known about. They all boil down to one important lesson: trials should be conducted with the potential for appeal in mind. An excellent way to meet this objective is to retain the consulting services of an experienced appellate attorney. Gusdorff Law is prepared to advise your trial team with an eye on the Court of Appeal. Give us a call today to learn more.

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