To paraphrase the poet Robert Burns, the best-laid plans of mice and insurance-coverage lawyers often go awry. No amount of planning can prevent the occasional setback from an adverse trial court decision. If you and your client choose to appeal an adverse decision, keeping a few simple tips in mind can maximize your chances of success at the appellate level.
Tip #1: Prepare the Record in the Trial Court. If there is a document, deposition, or other piece of evidence that is relevant to the issues before the trial court, make sure that evidence is part of the record. Whether that means filing deposition transcripts, making an evidentiary proffer after the trial court deems the evidence inadmissible, or putting the information on the record in some other way, make sure there is something the appellate court will be able to review. If the evidence isn’t in the record, the appellate court won’t consider it. Note that some people refer to this as “preserving” rather than “preparing” the record. I prefer “preparing” because it emphasizes that this is an affirmative action that requires some forethought on your part.
Tip #2: Don’t Hold Anything Back. Don’t hold a meritorious argument in reserve thinking that you can always play it as a trump card on appeal if necessary. Appellate courts frequently recite the maxim that they will not consider arguments raised for the first time on appeal. Even if you think a particular theory or argument has a slim chance of success in the trial court, think about whether to put it on the record anyway so that you can preserve your ability to argue it on appeal.
Tip #3: Beware of Final Appealable Order “Gotchas.” Some trial court decisions are not immediately appealable, so make sure that the decision you want to appeal is a final appealable order. Check whether the trial court included language to the effect that “there is no just reason for delay.” This is a sign that the trial court intended the decision to be a final appealable order. Even if the decision doesn’t contain that language, you can file a motion requesting that the trial court modify the decision to include the language. You can avoid another common “gotcha” moment by remembering the 30-day rule in Ohio state courts: a notice of appeal must be filed within 30 days of the entry of a final appealable order, or within 30 days of the date when an interlocutory order becomes final.
Tip #4: Consider the Standard of Review. Ohio’s appellate courts apply a variety of standards when reviewing the decisions of trial courts. The appropriate standard of review depends on what type of decision is being appealed. Generally, a trial court’s decision on a matter of law is reviewed de novo – meaning the appellate court reviews the question with fresh eyes and gives no deference to the trial court’s decision. In contrast, a trial court’s determination of an evidentiary issue is reviewed for an abuse of discretion – meaning the appellate court will afford a large measure of deference to the trial court’s determination and reverse only if the trial court acted unreasonably or egregiously. This is one of the most important tips to remember: depending on the standard of review, it may not be enough to convince the appellate court that the trial court made a bad judgment call.
Tip #5: Select the Best Assignment(s) of Error. The trial court may have made multiple errors in your case, but think about whether you want to argue each of those errors on appeal. Too many attorneys employ the “throw everything at the wall and see what sticks” method, arguing every possible error made by the trial court and hoping that the appellate court will seize on at least one of them and reverse it. The better practice is to distill your arguments into as few assignments of error as possible. This allows you to fully develop your argument on the most crucial errors, rather than arguing issues that are unlikely to be reversed anyway. (Remember Tip #4?) Remember that appellate courts will reverse a trial court’s error only if the error was “prejudicial”–i.e. if it actually made a difference to the outcome. Finally, remember that your brief is a scarce and valuable resource. Don’t invest large chunks of it arguing errors that, even if you convince the court you’re correct, the court will nevertheless find to be harmless or not important to the trial court’s ultimate decision.
Tip #6: Educate the Appellate Court. You may focus your practice on insurance-coverage law, but the appellate panel hearing your case doesn’t. Don’t expect the court to already be familiar with complex concepts such as trigger or allocation; instead, take the time to frame those concepts in your brief and explain to the court how they play out in your case. It can be tempting to gloss over these “introductory” topics in order to get to more nuanced arguments, but those nuanced arguments may fall on deaf ears if the judges don’t understand the concepts underlying them in the first place. In addition, explaining these foundational aspects of the argument in the brief means you’re less likely to have to spend precious time addressing them during oral argument.
Tip #7: Stick to Your Assignment(s) of Error… If you followed Tip #4, you made sure to carefully cultivate a few assignments of error rather than arguing everything under the sun. Don’t throw out all that hard work by trying to re-argue issues that aren’t important to the overall picture you want to present to the appellate court. For instance, if your appeal involves the question of whether the insurer has a duty to defend in an underlying case involving the policyholder, then naturally you’ll have to discuss some of the factual allegations at issue in that case. However, you may not need to delve too far into the details of underlying case if your appeal relates to a narrower question, such as the legal interpretation of a particular policy provision.
Tip #8: …But Don’t Be Afraid to Go with the Flow. One of the most common mistakes that attorneys make in oral argument is being too rigid, or treating the oral argument as a chance to lecture the panel. The best appellate advocates are those that engage the panel in a conversation. They are ready to direct the discussion if need be but are just as, if not more, happy to address any issues that the panel is particularly interested in discussing. Being able to roll with the punches and address whatever questions the judges present makes you look more prepared than if you go in with a detailed outline and expect the judges to let you tick off each and every point. Don’t be afraid to embrace your inner Jerry Maguire and ask the panel to “help me help you.” Simply asking the judges what questions they have or if there are any confusing areas of the argument that you can clear up for them can be a powerful tactic.