My 2009 Article in the Alabama Association for Justice Journal Regarding 5 Tips for Handling an Appeal is Worth Revisiting.
Posted on January 11, 2012
A few years ago I wrote an article titled,” Five Tips for Handling an Appeal in the Alabama Supreme Court.” Of course, these “tips” are not limited to appeals is that particular appellate court. The first tip was:
The Appellate Process Begins in the Trial Court Before an Appeal is Ever Filed.
Lawyers with their cases in the trial court generally focus on making sure they present the legal arguments to support their claims. That is certainly necessary. However, I believe the first step in the appellate process is creating the lower court record that will later be available on appeal. The best legal arguments and supporting case law are worthless on appeal unless the facts necessary to support them are present in the record on appeal. Thus, the “trial lawyer” has to think like an appellate lawyer long before an appeal is filed. This entails ensuring that all the necessary documents are placed in the record, whether it be contracts, affidavits, or deposition transcripts and exhibits. Although many lawyers simply attach deposition excerpts to their pleadings, I always recommend attaching the complete transcript. In my experience you simply cannot predict what parts of a deposition will be relevant to the issues in a later appeal, and as an appellate lawyer it is extremely frustrating to see that a portion of a transcript that supports a legal argument needed to be made on appeal is not available to be cited simply because it was not foreseen that it should have been filed with the court. The way to avoid such self-created errors is to file complete versions of every meaningful document in the trial court as an attachment to some pleading, and to make sure all such documents are admitted into evidence at trial and not simply marked as exhibits.
Another important issue at trial is to ensure that the right objections are made — and preserved — by forcing the trial judge to clearly make a ruling overruling the objection that is plainly expressed in the record rather than as vague expressions of “he can answer” or “counsel, go ahead” or the like. Having to attend to such details during the frantic pace of trial are what make trial practice so demanding; yet, in order for an appellate attorney to win an appeal on such issues, the details are critical.
- Techniques Used in a Winning Appeal Brief. (brieflywriting.com)