Revisit the Top 10 Appellate Mistakes in Trial Courts

Episode Notes

Transcript

Rocky Dhir:

Hi, and welcome to the State Bar of Texas podcast. I’m your host Rocky Dhir, and today we’re taking a little trip down memory lane. Some episodes just stand out either because of the importance of the topic, the particular guest or because we just had so much fun recording it. This is one such episode in case you missed it earlier or in case you’re new to the party and didn’t know it existed, feel free to sit back and listen up. This’ll be a good one.

Announcer:

Welcome to the State Bar of Texas podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.

Rocky Dhir:

Hi, and welcome to the State Bar of Texas podcast. One thing lawyers love to lampoon is TV lawyers. You know what I mean? The ones on the TV law shows the case comes in at 4:45 PM on Friday and they’re in court full trial with an impanel jury. The very next day, yes, it’s Saturday, but hey, it’s TV land. The lawyers pour their hearts into their cases, give passionate pleas and riveting closing arguments, and then promptly appeal whatever decision is made and the appellate judges are there just ready waiting for them. And that one case you want to know the worst part about those TV lawyers. For me though, it’s all my friends and family wonder why I can’t be more like that. They all want me to be, Mike is in Vinne. I dunno what’s up with this. But all trial lawyers know that the truth differs from the image set by Hollywood.

Most cases never go to trial. Those that do take tremendous preparation and demand, unwavering focus, part of that focus must be placed on the aftermath of the trial. Most notably, the appeal win or lose. There is a huge chance that some aspect of your case will get reviewed. Most of us tend to call on appellate lawyers once our case reaches that milestone. Most trial lawyers though recognize that appellate lawyers can play a key role even at trial. What many don’t realize though, are the nuances of when appellate mistakes often get made at the trial court level or even before trial starts. The July August episode of the Texas Bar Journal contains an article. It’s on page 4 76 in case you want to look for it right now. It’s called Help Us Help You Top 10 Appellate Mistakes In the Trial Courts. The focus of the article is to flag common appellate issues that trial lawyers should bear in mind.

The bigger question though is how can a trial lawyer keep abreast of all these appellate issues in the midst of all the moving pieces of a trial? The article was authored by four appellate specialists, Ana Einhorn, Melissa Lorber, Amanda Taylor, and Madrea Tomlinson. Today we have two of those authors with us, Elana Einhorn, and Melissa Lorber to offer us some additional perspectives. Elana and Melissa both practice in Austin at the firm of Enoch Keever. Elana serves as an adjunct at UT Law School and formerly worked as a staff attorney at the Supreme Court of Texas. You might’ve heard insights from Melissa on prior occasions because she frequently speaks all over Texas on appellate topic. So let’s get to it. Elana and Melissa, welcome to the podcast.

Melissa Lorber:

Thank you. Glad to be here.

Rocky Dhir:

Absolutely. Absolutely. All right, so look, first of all, we’re talking about appellate work, so let’s face it. Let’s face it, lawyers are not known for being cool, but you guys are like the queens of the nerds amongst the lawyers. Am I right? I mean, would you agree with that assessment?

Melissa Lorber:

I own that proudly. We’re the nerd lawyers for sure,

Elana Einhorn:

Right? We’re the ones keeping track paying attention. We’re the ones who are not down in the heat of battle. We get to be a little bit above it all with a little bit cooler heads most of the time, and that’s why we have the space to keep the rules and the updated law and everything else right at hand.

Rocky Dhir:

I think in law school we used to call you guys gunners. You guys were the ones on the front row raising your hands all the time with, oh, well what about this? What about that? You’re the ones that made me still remember the Paul’s graph decision this many years later.

Melissa Lorber:

Well, to the extent that I was prepared to be called on in law school, I think it’s helped because now you get questioned by panels of three or up to nine judges when you’re arguing in the appellate court. So the law school professors prepared us for that for sure. Yeah,

Rocky Dhir:

They certainly do. What they often don’t prepare us for are the tough questions by clients. Why didn’t you do this? Why didn’t you flag this at the trial court level, which is exactly where you guys come in. So let me ask you this question at the very top. Do you think it’s possible for a trial lawyer working completely alone by himself or herself to completely preserve error for appeal? Or do you think mistakes are bound to happen when they’re working alone?

Melissa Lorber:

It’s possible. It’s much more likely to catch and be prepared for and preserve everything if you have a team of lawyers, whether it’s two trial lawyers or a trial lawyer, an appellate lawyer,

Elana Einhorn:

Right? And I agree with that. I think it is possible, but it is a lot of work and I think to some degree, even just the short list of tips that we put here could almost serve as a guideline or an outline as someone is putting together a trial notebook. Just remember a lot of these things, there are rules that cover them and you just need to go look at ’em. You don’t have to study them or memorize them, but spend a little bit of time so they’re in mind as you’re moving forward. I think the hardest thing for trial lawyers, of course, is to find dedicated uninterrupted time to work on their drafting of summary judgment motions or any other sort of dispositive motions that are long on the law and a little bit shorter on the facts.

Melissa Lorber:

I find that a lot of lawyers, when the case justifies it cost-wise or the client approves it, are glad to have one of us sitting with them trial. I mean, one thing I hear regularly is they’re trying to prepare their closing while they’re trying to argue the charge, or they’re trying to fight about evidence on break when they need to be prepping the witness, and so they’re glad for whatever we can take off their plate during trial.

Rocky Dhir:

Do you find that, just in terms of the process, so let’s say that you have an appellate lawyer with you at trial, then how does that work? Does the appellate lawyer stand up and make the objections or do you scribble notes on a piece of paper and hand it to the trial lawyer and say, object and say this? I mean, how would you handle that if you were brought on at the trial court level? So Elana, let’s start with you on that one.

Elana Einhorn:

Well, it varies to a large degree. The appellate lawyers are not typically doing the moment to moment evidentiary objections. They may very well be scribbling and handing a note to someone on the other side of theBar, but ideally there’s not going to be too many. I mean, there’s always surprises, but ideally there’s not going to be too many. So you’re prepared, right? That’s the whole purpose of kind of starting with the charge and working forwards. What do you need to prove? You have some idea of what’s going to happen. Again, the place where appellate lawyers really can be most helpful during the trial itself is arguing the charge is the primary way. Then also sort of keeping track as things are introduced. Are you producing the evidence to the court that you will need for your charge to be supported and go to the jury? And then other major rulings on experts like we call them in Daubert motions ruling on expert testimony, any big motions involving evidence you would expect an appellate lawyer to at least be involved in, if not argue.

Rocky Dhir:

And Melissa, what’s your take on that? How do you like to get involved at the trial level?

Melissa Lorber:

Yeah, I agree with that. When I go to trial with trial counsel, I rarely, if ever stand up and do anything in front of the jury, they’re the face to the jury. The jury might not even know who I am, but I’ll argue things to the bench. I’ll argue pretrial motions, I’ll argue evidentiary motions over break. Definitely usually argue the jury charge sometimes argue directed verdict. But this is all behind the scenes for the jury. I’m rarely doing anything, so I wouldn’t be standing up and making objections or anything in front of the jury.

Rocky Dhir:

So we need to get a quick word from one of our sponsors. And so we’re going to do that in just a minute. Before we do though, when we come back, we’re going to talk a little bit about what trial lawyers can do to better prepare themselves for these types of appellate issues going in. So ladies get ready, be thinking about that. And for all of you listening in, let’s get a quick word from our sponsors. We’ll be right back. Alright, welcome back. We are here with Alana Einhorn and Melissa Lorber talking about preserving appellate review at the trial court level, or more specifically, what trial lawyers can do to better prepare themselves for the appellate process. So ladies, your article in the Texas Bar Journal, it’s very detailed. It honestly can leave one feeling a bit daunted. I mean, there’s a lot that you’ve packed into two pages, which is a big compliment. I mean, you’ve really done a great job of summarizing all that, but what do you think trial lawyers should read or do to be better prepared for appellate preservation and kind of getting themselves ready for these things? So Melissa, let’s start with you on that one.

Melissa Lorber:

Yeah, I mean, I think the first thing that trial lawyers should keep in mind is that evidentiary issues can arise throughout the entire case. So starting with preparing your pleading, then filing your pleading, it starts long before trial. And then self plug, I recommend reaching out to an appellate lawyer before trial, even if they’re not going to come to trial with you, but to talk through some appellate related issues that are going to come up at trial and how to deal with them, even if it’s just a half an hour call with a friend as a business development favor. I mean, do something like that because before, during, and after trial, issues are going to come up. And so you just need to be aware what those issues might be in advance so you can be prepared.

Rocky Dhir:

Alright, Alana, would you agree with that or are there specific materials you think that trial lawyers need

Elana Einhorn:

To? Yeah, I definitely agree with what Melissa said, and if possible, if it’s affordable, getting appellate counsel involved at the beginning as the issues narrow, as you get closer and closer to trial, having an appellate lawyer on board can really help facilitate that process. And then as far as specific materials, once you’ve got your universe of claims that are going forward, I would for sure pull that Texas Supreme Court update off of the Texas Supreme Court’s website. It’s free, it’s online, and go through, just look at the cases that have recently been decided on your issue and any pending grants. They also include a summary of little grants, little summary of grants of petitions for review. And then the other thing that I think really would help trial lawyers, and I know given their time as they get closer, is pull a copy of Wendell Hall’s standards of review, which is the Bible on standards of review in Texas.

It gets revised over the years. It’s a St. Mary’s publication, it’s available for free online. And just look at, here are my rulings, what’s going to get me an abusive discretion standard on review, which is harder to beat. Here’s what’s going to be de novo, which is easier to review. He walks through the legal sufficiency levels and challenges that you can bring. That’s one thing. And then city of Keller versus Wilson, which is the Bible on legal and factual sufficiency, and having that in mind as you’re presenting your evidence, as you’re marshaling your evidence will really help us be able to make strong arguments about whether you’ve made your case.

Rocky Dhir:

And see, this is not in the article. This is why you listen to the

Elana Einhorn:

That’s

Speaker 5:

Right.

Rocky Dhir:

Because you get additional stuff. For those of you tuning in, now you sound smarter with your fellow trial lawyer friends, you get to say, look, I’m an honorary nerd. Okay, I’m an honorary appellate nerd. This is awesome. So Alana, that’s one of the things that you guys mentioned in the article is read up on certain rules. I think you were saying, was it Trap 33 read up on the Texas Citizens Participation Act and see what it requires. Now it’s interesting when you talk about the Texas Citizens Participation Act, the TCPA, I don’t know that that many lawyers are still familiar with that set of statutes. So can you walk us through what those are and why they’re important from an appellate standpoint?

Melissa Lorber:

It’s interesting because the TCPA is still a very heavily litigated statute in the appellate courts, and it can play into trial court cases even when people aren’t expecting it. So what the TCPA is, is the Texas Citizens Participation Act, which is what they call an antis SLAPP statute. And it’s intended to protect defendant’s rights to association and speak and petition. And so if you are pleading something that can even arguably be construed as interfering with one of those rights, then there is a way for the defendant to potentially take the case off track to make you marshal your evidence early in the case potentially to take it up an interlocutory review and potentially to get their attorney’s fees back. So back at the pleading stage before trial is when we say spend a half an hour looking at the TCPA, see if your case arguably can fall into it, can you plead around it, prepare your client for it? And so that’s something that’s done long before trial.

Rocky Dhir:

Okay. And so is it just a matter of reading the statutes themselves or are there key cases or treatises that you think are important for that?

Melissa Lorber:

So I would start with the statute. The statute has been amended a few times, I think because of all the appellate action that’s happening. I don’t have a name of a key case right off the site. But yes, I would look in your jurisdiction, whichever court of appeals district you’re in and see what the latest discussion is because it’s continuing to be litigated. And there’s not Supreme Court final answers on a lot of the issues. So it’s going to depend on what court of appeals you’re in. But I would say start with the statute because you’ll know based on your pleadings in your case if this is going to be an issue or not. And if it is going to be an issue or potentially is, then that’s when you can dig further into the case law.

Rocky Dhir:

One thing that the article that y’all wrote, you talked about pretrial and pleadings, but we didn’t read a lot about motions practice and whether to what extent there are appellate mistakes happening at that level of the trial process. So Alana, do you see a lot of appellate mistakes happening even at the motions level outside of the judge and jury?

Elana Einhorn:

Because rulings on motions, non-positive motions non TCPA or motion to dismiss motions are subject to the abuse of discretion standard of review. Those are not typically winning arguments on appeal. The judge abuse its discretion by not granting my motion for continuance. In extreme cases, yes, there’s always some exceptions, but on the routine motions, no, not really. From a former legal research and writing professor, full-time instructor perspective, not being clear with the trial court about the relief you actually want from the judge and doing it in a timely fashion. Of course, circumstances get in the way, but giving the judge enough time, setting the motion for a hearing if that’s appropriate, and actually getting a ruling because just asking for it does very little if it turns out to be something we need to argue on appeal.

Rocky Dhir:

Now, you mentioned non dispositive motions. What about on dispositive motions? Say like a motion for summary judgment. Are there more mistakes happening at that level where folks are not preserving their appellate issues?

Elana Einhorn:

There can be. There’s definitely You’ve got to bring your arguments. You can’t come up later and raise new arguments. But also a lot of the evidentiary points around complaining about affidavits or whatever might be attached as your evidence to summary judgment. We do see that a fair amount, and you do want to look at that carefully and make sure that your evidentiary materials, if you’re trying to raise a fact issue, of course, comply with the rules of evidence and would be admissible at trial.

Rocky Dhir:

Now, Melissa, maybe this is one you’d want to take, but one of the things that the article talks about is that what I took from it, I should say, is that it’s not enough to just say at trial. Objection, your Honor. You’ve actually got to state your reasons. And the problem there for a trial lawyer is if you don’t state the reason that turns out to later on have better appellate teeth, then you may have made some kind of a mistake at that level. So then as trial lawyers, we want to just throw everything out there. Here’s a whole bunch of reasons why we win. So what’s your advice there? I mean, obviously it’s not enough to just say objection, your Honor. We’ve got a state of reason. How do you kind of tread that line between keeping it succinct, but at the same time covering all the appellate issues that might pop up?

Melissa Lorber:

So this comes up a lot in both objecting to evidence that you want in that doesn’t get in and evidence that you want out that does get in.

And so I think the best way is to be prepared in advance. I mean, as Alana said earlier, there shouldn’t be a lot of surprises about the evidence on the fly during trial. You know what? They’re going to try to get in what you want in. So be prepared with what your best argument is or maybe what your best two arguments are because it’s the same. You do need to object with specificity, say why it’s admissible or say why it’s not admissible and get a ruling from the court. And if you’re just spouting off 15 things, that’s not a clear basis for your argument to the court. And the appellate court’s going to say, the judge didn’t abuse its discretion by letting that in or didn’t err by letting that in because they didn’t understand what you’re talking about. So I say be ready with two if there’s three, but no in advance, which you’re going to argue and be prepared for it.

Rocky Dhir:

Now, we’re going to take another quick ad break here at about that time, but when we come back, we’re going to talk a little bit about the nuts and bolts of having an appellate lawyer with you at trial. So let’s be thinking about that while we take a quick break to hear from one of our sponsors. We’ll be right back, and we are back here with Alana and Melissa while we talk about mistakes that trial lawyers sometimes inadvertently make because they’re not aware of all the appellate issues. You can see their article in the July August issue of the Texas Bar Journal, page 4 76, go read it. It’s a great article and it’s got a lot of interesting nuggets in there. But one of the things that we’ve talked about throughout the course of this discussion that we’ve had is about having, it’s the merits of having an appellate lawyer by your side when you’re at trial to help identify and preserve error.

And it sounds like both of you had some experience being that appellate lawyer sitting at the trial level and trying to flag issues and help keep them preserved. Now, what’s your advice for lawyers who are representing a client that can’t afford that luxury? I mean, that’s a great thing to have if you’ve got a client that can afford it. If they can’t, can only afford one lawyer and that’s a trial lawyer and that’s it. What advice would you give them on how best to get themselves and their clients prepared and still keep it a fair and balanced trial process so that it’s not just skewed in favor of the more moneyed party? So Melissa, maybe we can start with you and then Alana, this is a big question, so I’d like to hear from both of you.

Melissa Lorber:

So I would say if you’re the trial lawyer, you’re taking this solo and you’re doing everything at trial, the best time to prepare for a potential error preservation and appellate issues is before trial because you have got too much going on with the jury and the judge and the at trial. So before trial, the trial counsel should spend some time with an appellate hat on and thinking through what could go wrong at this trial? What am I going to need to fight about? What arguments am I going to need to make and have a cheat sheet ready? Maybe go to listen to an appellate COE about error preservation, but definitely sit for, be a nerd lawyer for a little while, right? Sure. Like an appellate lawyer and sit and just think through appellate issues and have your notes, your bullet points so that when they arise, you’re not, not one more thing you’re having to think about on the fly at Toronto.

Rocky Dhir:

Elana, what’s your perspective on that? Because it’s a big question, right? I mean, if there’s an affordability question, now you want to make sure you do the best you can for your client, but at the same token, there’s only so much one person can do. So what’s your take on

Elana Einhorn:

It? Right. Well, I echo what Melissa says. It’s being prepared in advance as much as possible. While you’re getting ready for the heat of battle, things are a little bit different, but having some of these routine things in mind, even just going back through, for example, Texas Rule of Appellate procedure 1 33,

That’s just about here’s the basics of making a complaint so that you’ve preserved it for appeal. Have I let the trial judge know what they’ve done wrong? Have I given them a chance to rule? Have I made it clear? Having that, that’s a very simple sort of mantra almost, but having that in the back of your mind, internalized will help you in the moment. And then there’s also any number of resources, both through the state bar, through the different sections, the state bar appellate section, and local bar association sections that routinely put on either appellate 1 0 1 presentations or presentation specifically on preservation, the Texas State Park online library, which is a wealth of resources, and it does require payment to access unless you’re a member of the State Park College, but you get on there and search for papers on preservation or on the specific thing you’re looking for, and then you’ve got a quick sort of roadmap to whatever it is. But preparation is key. Knowing the law in advance is key. And then sometimes even just making friends with us, I answer questions random, not necessarily case specific questions, or someone will call me up and just be like, what’s the best resource you found on Supersedious, for example? And I can point them in the right direction.

Rocky Dhir:

Have you ever heard of appellate lawyers that are willing to join in on a contingency fee and say, look, I’ll be part of the trial team on a contingency basis. So that way maybe if you’re on the personal injury side and you’re on the plaintiff side of that, you can have the benefits of an appellate specialist next to you. Have you heard of that happening? And how common is it?

Melissa Lorber:

Like you mentioned, it’s more common on the plaintiff’s side, I believe. And on a rare occasion we have participated in appeals on a contingency fee basis. We’re less likely to do that, but we are likely, like Alana said, theBar is a fairly close-knit group, and we’re willing to talk to people and answer questions. And even during trial answer texts, I mean, we’re not going to get in and represent your client with you, but we’ll help trial lawyers with appellate issues, and we’ll ask them two months down the road, we’ll ask them about a trial issue. And so at least do that, reach out to appellate friends and ask your few questions if you can.

Elana Einhorn:

And they’re also mixed arrangements with partial contingency and partial hourly. We definitely at the firm have had several of those since I’ve been here where it’s a combination.

Rocky Dhir:

The article focused on mistakes that trial lawyers made, appellate lawyers made at the trial court level. Let’s talk about appellate mistakes made on appeal by traditionally trial court lawyers, because we see that happening too, and especially where there’s an affordability question. If you’ve got a client who can’t afford thousands of dollars for an appellate issue, it’s their contingency fee trial lawyer who’s now handling an appeal and they’re valiantly out there trying to do everything they can for their client. But what are some of the biggest mistakes you see when trial lawyers attempt to handle their own appeals? What is it about the appellate process that some of us just don’t understand and maybe we need to understand? So Alana, we can start with you on that one, and then Melissa will lobb it over to your side.

Elana Einhorn:

Yeah, this is one of my favorite topics to talk about with my students. Appeals are even more rules bound and the rules of appellate procedure are a marvel and a beauty because they tell you exactly what to do. So read the rules. They tell you which parts of your brief that you need. Most importantly, they tell you how many words you have to present your client’s case, but it’s all laid out there. The rules of appellate procedure are nowhere, as long as the rules of civil procedure, making sure you’ve got all the deadlines. Calendared always important for lawyers, but especially when you’re taking something on appeal, and then the other space is right after judgment comes out, there’s a whole lot of scrambling around, what do I need to do? What am I going to preserve? All of that. I think of it as the dust cloud from the peanuts cartoon that gets kicked up. If you can afford appellate council at that point, that would be a great opportunity. And if not, making sure you have looked at some resources and read up on the rules about how all of that works. Even, for example, the legislature this past session amended the statute governing supersedious and how judgments are superseded or can be superseded for clients with a certain monetary threshold. So that’s a constantly changing area, and we see a lot of mistakes there too.

Rocky Dhir:

Interesting. Melissa, what would you add to that?

Melissa Lorber:

Yeah, so I would say the number one advice I have for trial lawyers practice rarely, but in the appellate courts that are taking a case up, is to remember that you have a different audience. Often we’ll see trial lawyers coming to the court of appeals in their briefs and in their oral arguments and making jury arguments and making the impassion plea about the facts of the case. Whereas when you’re up on appeal, it really is the boring, nerdy issues. It’s the legal issues, it’s the

Evidentiary challenges, jury charges errors. If evidentiary issues come in, it’s a legal sufficiency or a factual sufficiency, you’re no longer trying to persuade someone that you were right on the facts. Right? That’s not a winning appellate argument. So just keeping, and it is just going to be on paper for the most part. Oral arguments are still fairly rare, and the courts of appeals are mostly deciding these issues on the papers. And so just sort of understanding that you have one or two opportunities in your briefing to tell your story and taking advantage of that in an appellate way rather than continuing your jury argument way.

Rocky Dhir:

So final question, and then unfortunately, we’ll be reaching the end of our time together, and there’s just so much to unpack with topics like these. But I guess the final question that we can maybe leave folks with is, in your opinion, do you think, and Melissa, we’ll start with you, in your opinion, do you think as trial lawyers, we oftentimes times identify the wrong issues to take up on appeal when we’re the ones doing it? If we’re, so, we might be identifying certain issues that we think are bigger issues that may not have as much of an impact if this case gets taken back to the trial court level or maybe won’t, won’t get us the rulings that we want to. And what inspired that was when Alana talked about the standards of review and not understanding those abusive discretion is harder. You might have a very sexy issue, but it’s on a different standard than it is with an issue that might have a de novo review, but just doesn’t sound as cool. So do you think that’s a problem? Do trial lawyers oftentimes identify the wrong issues to take upon appeal?

Melissa Lorber:

Sometimes, yes. I think more experienced trial lawyers have a fairly good sense of this just wasn’t handled correctly. I think the way that appellate lawyers can commit is with a fresh perspective and talking to the trialers about what they think are the top issues, and maybe helping reframe them a little bit,

Speaker 5:

Maybe

Melissa Lorber:

Not arguing them exactly the same way, applying the standards of review, helping them determine which ones are stronger. I think we can also identify additional appellate arguments that might not have sexy arguments, argued a lot in the trial like charger and things that weren’t in the heat of the battle, super contentious, but that are also worth bringing up on appeal.

Rocky Dhir:

Elana, what’s your perspective on that?

Elana Einhorn:

Yeah, no, I agree with all of that, and we just tend to have, I don’t know if it’s by inclination or personality, kind of more of a zoomed out or bigger picture perspective. We typically follow the courts very closely. We know about their personalities, so we study their opinions. We can look at something or look at an argument where a trial lawyer is just like, this is the key evidence I got it in. How did we lose? Or how are we going to defend this on appeal? And we can come in and say, well, the Texas Supreme Court, this is not a hot issue for them right now. It hasn’t been for three years. They’ve only granted two cases in this area. It’s kind of, again, the cooler heads come in and can kind of give a bigger picture perspective, and then from there, work on developing the kinds of appellate arguments Melissa spoke of.

Rocky Dhir:

Okay. Well, again, we could talk all day about this. There’s a lot of interesting topics that all of our appellate friends bring in. So Elana, Melissa, thank you both for joining us. This was a lot of fun and very, very insightful. Thank you both.

Melissa Lorber:

Thank you. Thanks for having us.

Rocky Dhir:

Absolutely. And of course, I want to thank you for tuning in, and I want to encourage you to stay safe and continue to be well. If you like what you heard today, please rate and review us in Apple Podcast, Google Podcasts, or your favorite podcast app. Until next time, remember, life’s a journey, folks. I’m Rocky Dhir signing off.

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