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Many good appeals have been lost because of counsel’s failure to preserve the record. It is essential to understand how best to preserve issues for appellate review and which issues have a greater chance of reversal. In this week’s episode of “The Jury is Out” host, John Simon, sits down with experienced industry professionals Richard Finneran (partner with the BCLP Law Firm) and Joan M. Lockwood (attorney with Gray Ritter Graham) to discuss just this and more.
The first step in preserving legal issues for appellate review is to be thinking about it. “I think it’s an important thing to think about throughout any stage of litigation. [It is important] to be looking out for those issues that could become appellate issues, and making sure you’re preserving them successfully for appeal,” says Richard Finneran. Even the sharpest minds and best honesd rhetoric cannot revive a great argument that has not been properly preserved for appellate review. So, how best can counsel anticipate and preserve issues for appeal?
In their discussion, Finneran and Lockwood explain, generally, to preserve an issue or argument for appeal, trial counsel must both:
The key I think is to be prepared to take the necessary steps to make sure that you’ve got your objections on the record in a concise and businesslike way, and that you’ve made the appropriate offers of proof. – Joan Lockwood
One of the most fundamental adages of appellate review is “if it’s not on the record, it doesn’t exist.” Without a record, there is simply nothing to review. It is essential, therefore, to make sure that the case record is full and complete.
Creating a strong record and appropriately preserving all potential issues for appeal is challenging, however. This record-keeping becomes especially challenging in complex litigation when trial counsel is focused on winning a trial, rather than preparing for an appeal. According to Lockwood, two good rules of thumb to remember during the trial phase is to:
“…because your record on appeal relies on those components.”
Preservation is not always easy, but without careful attention to creating and preserving the record, a future appeal may be lost before it begins. One strategy many firms implement, particularly where the likelihood of appeal is high, is to retain specialized appellate counsel at the onset of litigation. Having special, separate appellate counsel enables greater opportunity to:
Regardless of whether separate appellate counsel is retained, trial counsel should be mindful of an appellate strategy throughout all stages of litigation and adjust it as needed.
Once you’ve reached the appeal stage, though, and are filing an appellate brief, what is the most effective way to do this?
There are several strategies to keep in mind when writing a brief – and several mistakes many lawyers make when submitting an appeal. “…One of the most common mistakes [trial lawyers] make [when filing for appeal] is [including too many different points]. And by doing that, you’re taking away from your ability to really place the emphasis on the top 1 – 2 issues that have a genuine chance of getting a reversal,” says Rich Finneran.
It is important to be selective regarding the legal arguments that you include in your brief. Weak arguments can detract from your overall credibility, and the credibility of your brief and strength of your arguments. “Your credibility can vanish if you go in with too many issues to argue – whether it’s an appellate brief or something you’re doing in the trial court,” says John Simon. And credibility is important – especially when it comes to convincing a judge on appeal.
“You have to present yourself as someone who is giving the judges a genuine explanation of why there was an error [in the lower court] or why there wasn’t…And if you are perceived as someone that is just throwing [the kitchen sink at them] to see what sticks, then you’re not going to be effective in convincing the judges on your most important points.”
In addition to focusing your brief on the top 1 -2 major issues, Rich, Joan and John provide some other insightful key strategies to writing an effective and impactful appellate brief.
Most appeals are read and analyzed by more than one judge, in addition to their research staff. It is helpful, therefore, to put yourself in the judges’ shoes and focus on the information the judges want (and need) to hear in order to make the best decision possible. Because judges will not spend as much time on the case as you and will likely not know the legal topic as well as you, it is important that the brief educates while also persuading.
Judges are extremely busy, and are often reviewing several briefs a day. Thus, it is important to keep the issue and arguments simple – regardless of the complexity of a case. The issue(s) and arguments in a brief should be presented in a clear and concise manner, and in a way that is easily understandable.
When writing an effective and persuasive appellate brief, you must earn your audience’s attention. One of the best ways to do this is by structuring a persuasive statement of facts.
“The statement of facts is the best place to win your case and there are a couple reasons for that: 1) It’s a chance to tell the story and 2) it reduces cognitive blow to the judge…When you tell a good story, it makes the important issues become more vivid and easier to remember and understand.”
The statement of facts should not simply be a recited dry list described in chronological order, but rather a compelling, narrative of the facts. “You’ve got to tell the story, you’ve got to make it interesting, you’ve got to capture the reader’s attention and engage them with your statement of facts.” – Joan Lockwood
“[The] first rule of appellate brief writing is to study those rules,” says Joan. Be sure to know the standard of review that the court will use to decide your case.
“There’s a technical component and nontechnical component to brief writing…[while not exciting] the rules of brief writing are critical. Noncompliance can result in the loss of an argument or dismissal of the appeal.” – Joan. As such, your arguments should always be drafted in light of the relevant standard of review.
There are several components that go into filing a successful appeal. From effectively preserving the record to writing a persuasive brief, the ‘road to reversal’ is not an easy one for trial counsel. Not to mention, the overall industry statistics for case appeals are low. According to an Emory University study approximately:
Given this, it’s good to keep in mind that ‘reversal is a rare thing to occur’. And while reversal may be difficult, effectively preserving the record and writing a thoughtful and persuasive brief greatly increases these chances of a successful appeal.
For more information and expert advice on appellate law, be sure to listen to the second episode in this two part series: The Jury is Out: ‘Ep. 310 – Appellate Law Part Two with Joan Lockwood and Rich Finneran’