Litigation in the trial court involves many moving parts. A case often changes shape multiple times before trial. Twist and turns abound on the road to judgment.
Able litigators and trial attorneys immerse themselves in the details of a case, mastering every bit of information. This task becomes more difficult as theories of liability and defenses emerge or evaporate as the case progresses. Through it all, it is easy to forget that an appellate court might review the record after the trial court disposes of the case.
With few exceptions, an appellate court will disregard matters not reflected in the trial court record. Those matters never occurred as far as the appellate court is concerned. Though by no means comprehensive, the following suggested steps might help to avoid a loss on appeal that could have been prevented.
Ensure that a court reporter transcribes all pre-trial proceedings that might become relevant on appeal. Dispositive motions obviously jump to mind, but there are others. Status conferences might involve key questions such as proper venue or bifurcation of issues for trial, among others. Hearings on discovery motions might involve critical evidence or matters of privilege. A wide variety ofex parte applications might present appellate issues. Always make a considered decision about whether a particular proceeding calls for a court reporter.
Ensure that any transcript contains clear descriptions of documents or other evidence to which a witness, counsel, or the court may be referring. When counsel or witnesses reference marked exhibits, always do so by number or letter. Within a document, always reference page numbers or other information orienting the reader to the relevant content. With respect to drawings, plans, charts, diagrams, and the like, counsel and witnesses should articulate accurately and precisely the information to which they refer. Vague references to “here” or “there” are inadequate on appeal.
Ensure that proceedings held in chambers are transcribed. For example, if an issue regarding jury instructions arises while the jury is present, the judge may adjourn the proceedings to chambers to hear the matter. Without a transcript, any claim of instructional error on appeal might be waived.
Make evidentiary objections in writing if possible. Although written objections are neither practical nor required when objecting to counsel’s questions or a witness’s answers at trial, in almost all circumstances the failure to object in the trial court either orally or in writing constitutes a forfeiture of the objection on appeal.
Ensure that documents are actually filed, and not simply lodged, in the trial court. If the record does not reflect that the trial court considered a lodged document, reliance on that document might be waived on appeal.
Ensure that trial exhibits are not just simply marked and authenticated, but also that they are admitted into evidence.
The above list is not nearly exhaustive. It does, however, highlight recurring mistakes identified by appellate courts. In many instances, the mistake results in a loss on appeal.