Being aware of the courtroom layout, being careful with the verdict form and oral motions, and more
Key to any successful appeal is, of course, preserving errors and making a complete and accurate record. However, sometimes things get missed in the high-pressure back-and-forth of trial. Below are some tips for inside counsel managing litigation counsel.
1. Engage litigation counsel regarding motions in limine, and know whether such motions preserve issues for appeal
Motions in limine can be helpful in identifying evidentiary issues before those issues arise and can help streamline substantive objections and rulings at trial. However, it is crucial to know, under the particular jurisdiction’s rules and case law, whether a ruling on a motion in limine preserves the objection to the evidence — in some jurisdictions it does not, and counsel must object at the time the evidence is offered or the issue will be considered waived for purposes of appeal.
2. Ensure that counsel is aware of the courtroom layout and dynamics
This might seem strange, but sometimes the courtroom layout can make record preservation difficult. For example, if the judge is seated particularly close to the jury box (as is the case in some jurisdictions), the judge might frequently walk to the side of the courtroom to have sidebar conferences. However, if the court reporter does not move along with the judge and counsel, then none of those discussions and objections will get into the record — a situation easy to overlook in the heat of battle. Ask that counsel be particularly diligent in asking that the reporter be present for any substantive conferences.
3. Don’t wait until the end to think about jury instructions
Careful preparation of jury instructions is necessary, and you should encourage counsel to do that work (or at least much of it) before trial begins. Your instructions — which list out the specific elements and issues involved in the case — can provide an excellent roadmap to guide your trial presentation and help prevent waiver or an inadequate evidentiary record.
Furthermore, a party must offer a correct instruction in order to complain about an incorrect instruction. Make sure the proposed jury instructions are complete. Proposed instructions can be denied without error if any aspect of them is not accurate. Accordingly, it is often helpful to break the proposed instructions into smaller sections, which allows the judge to at least adopt some parts.
Always remember that, if accepted by the judge, proposed jury instructions are going to be the “law of the case,” and counsel will likely not be allowed to argue on some other legal basis on appeal, even if the proposed instruction was wrong on the law. Make every attempt to engage with litigation counsel on jury instructions prior to the trial.
4. Request that litigation counsel take steps to place the jury charge conference on the record in some fashion
Make sure to make an objection that the failure to give every charge proposed but not given was error. Also, raise objections to the other side’s charges with specificity. Often, charge conferences are off the record. In such situations, try to have a set of written objections to the other side’s jury changes, and get the judge to rule on that so that there is no doubt that any error has been preserved.
5. Be careful about the verdict form
Be aware that when counsel agrees to a particular verdict form — general or special — counsel is likely taking certain risks and waiving certain arguments. As always, be aware of the particular jurisdiction’s rules on verdict forms.
6. Be wary of oral motions
Ask counsel to file written motions if at all possible. Oral motions can lend themselves to confusion on appeal, because they might not have been picked up, or picked up correctly, by the court reporter. Leave no doubt that you have raised and obtained a ruling on an issue. It is not comfortable to be in a post-trial fight with opposing counsel about what was, and was not, raised during trial.
7. Postjudgment motions — know the rules
During trial preparation, be cognizant and plan for postjudgment motions. At times, certain arguments (such as those attacking the sufficiency of the evidence) must be made at certain times (for example, at the close of all the evidence) or they are waived. Counsel should be very sure of those rules.
8. Check the appellate record itself when it is compiled
Ensure that counsel take the time to review the record on appeal. Many times the trial court clerk or court reporter accidentally omits portions of the record. If this is not caught and corrected in a timely manner, counsel might be stuck with a bad record. Counsel should be familiar with the particular jurisdiction’s rules concerning when the clerk and reporter must have their portions of the record complete, and when and how the record should be corrected or supplemented.
Republished with permission. This article first appeared in Inside Counsel on November 6, 2014.