Make Sure to Put “Good Stuff” About Your Client in the Record.
Posted on October 25, 2013
I have noted in many posts on this blog that an important part of appellate brief writing is storytelling, telling your client’s story to the court in a way that will keep the reader’s attention. I’ve also noted in a post about the formula for winning an appeal, found here, that the first step is getting the court to want to rule for your client. One way a trial court litigator can help the appellate attorney win on appeal is to ensure that the record contains information about the client that the appellate attorney can use to portray the client in a most favorable light, present the facts of the controversy favorably, or otherwise tell a more complete story. This is often missing in summary judgment appeals or cases involving few depositions or a short bench trial. In my experience as an appellate attorney I have many occasions when I’ve met with lawyers in the firm I was with at the time or now doing freelance work where I’ve discussed the client and the case, found out favorable information that I planned to utilize in drafting the appellate brief, and then be surprised to find that the favorable information wasn’t present in the record on appeal.
While it may not be critical to the issues of the case in the trial court, if the doctor sued for malpractice has won a humanitarian award or takes foster children into his or her home, make note of it in the Answer or have your client work the information into his testimony while giving background information in deposition. If your small business client is family-owned, has been in business for three generations, and is an important local employer, or has won an award for being “green,” don’t hide that fact. Find away to put it in the record. If your injured client teaches a Sunday school class or does volunteer work with disabled or underprivileged children, put it in the record. Don’t let your client become a generic “the Appellant” or “the Appellee” when the case goes on appeal. Instead, make sure that favorable facts relating to the client are available to the appellate attorney to portray them in the story of the appeal brief as living, breathing souls or an honest business that the appellate judges can empathize with. In a close case, it can mean the difference between winning and losing an appeal.