Appellate Litigation

The most jarring constraint for clients and trial counsel is the closed record rule. The appellate court will generally not hear new witnesses, accept new documents or consider evidence that was not presented at the trial level. We must work strictly within the four corners of the trial transcript and the clerk’s record.

This limitation demands meticulous preparation. We scour thousands of pages of the record to find the specific moments where an objection was made and overruled. We must demonstrate not only that an error occurred but that the error was preserved on the record. If an issue was not raised in the lower court it is generally waived on appeal. Our strategy involves reconstructing the trial through the transcript to find the exact legal errors that provide the basis for relief.

The outcome of an appeal often hinges on the standard of review applied by the court. This is the lens through which the appellate judges view the actions of the trial court. 

Different issues trigger different standards and understanding this hierarchy is essential for success.

• De Novo Review: The appellate court gives no deference to the ruling of the trial judge and decides the legal issue fresh (typically used for questions of law or statutory interpretation).
• Abuse of Discretion: The court will only reverse if the decision of the trial judge was arbitrary or unreasonable (typically used for evidentiary rulings or discovery disputes).
• Substantial Evidence: The court will uphold the verdict if there is any credible evidence to support the factual findings (the hardest standard to overcome).
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We frame our arguments to fit the most favorable standard. Positioning an issue as a question of law rather than a question of fact significantly increases the probability of success in appellate litigation.

A critical component of appellate practice is ensuring that errors were properly preserved at trial. The general rule is that an appellate court will not consider an argument that was not presented to the trial court. This encourages parties to fix errors as they happen rather than waiting to use them as insurance on appeal.

We analyze the trial record to ensure that trial counsel made timely and specific objections. If an objection was not made we must determine if the error was so egregious that it constitutes plain error which allows for review even without an objection. This is a high bar. We advise trial counsel during ongoing litigation to ensure that the record is protected for any future appeal.

Demonstrating that an error occurred is only half the battle. We must convince the panel that the error mattered. If a judge improperly admitted a piece of hearsay evidence but there were five other witnesses who testified to the same fact, the court will likely deem the error harmless.

We conduct a comprehensive impact analysis. We argue that the tainted evidence was the linchpin of the opponent’s case or that the improper jury instruction confused the jurors on a central issue of liability. By tracing the error through the deliberations and the verdict form, we demonstrate that the judgment cannot stand because it is infected by the legal mistake.

The way a legal issue is framed often dictates the answer. We spend hours crafting the Questions Presented section of the brief. Instead of asking a generic question about whether evidence was admissible, we frame the issue to highlight the legal principle we want the court to adopt.

This framing directs the attention of the court to the specific ground where we have the advantage. We use the brief to constrain the analysis of the court to the most favorable legal theories. By defining the scope of the dispute on our terms, we control the direction of the legal analysis before the court even reads the argument section.

Legal research in appellate litigation goes beyond finding a case that matches the facts. It involves tracing the genealogy of legal doctrines and understanding the judicial philosophy of the panel. We analyze the specific judges who will hear the case and their prior rulings.

We cite cases that they have written or that they respect. We distinguish adverse precedent by showing factual nuances that make those cases inapplicable to our situation. We also use policy arguments to show the court that ruling in our favor establishes a good rule of law for future cases. We appeal to their role as guardians of the jurisprudence to persuade them to correct the error of the lower court.

Appellate judges use oral argument to test the boundaries of their potential ruling. They will interrupt with questions that challenge the logic of the brief. We welcome these questions because they allow us to resolve the doubts of the court in real time.

If a judge asks about the procedural history we know they are looking for a technical way to resolve the case. If they ask about policy implications they are concerned about the precedent they are setting. We answer these questions directly and then pivot back to our core themes. The ability to think on one’s feet and maintain credibility under fire is the hallmark of an effective appellate advocate.

Judges frequently use hypothetical scenarios to test the limits of a legal principle. They ask if ruling for us in this case would lead to an absurd result in a future case. Answering these hypotheticals requires a deep understanding of the legal theory and the ability to draw principled lines.

We must be able to articulate a rule that allows the court to rule for us without creating a dangerous slippery slope. We assure the court that our proposed rule is narrow and manageable. By demonstrating that our position is consistent with existing law and public policy, we alleviate the fear of the court regarding the unintended consequences of their decision.

The standard route is a direct appeal after a final judgment which ensures that the case is fully resolved before the appellate court steps in. However certain rulings require immediate intervention. Interlocutory appeals allow a party to appeal a non-final order.

This is common in issues involving qualified immunity, class certification or the denial of arbitration. We analyze statutes to determine if we can certify a controlling question of law for immediate review. When an appeal is not available we may seek an extraordinary writ such as Mandamus. This is reserved for emergency situations where a trial court is about to disclose trade secrets or exceed its jurisdiction and immediate intervention is necessary to prevent irreparable harm.

The appellate process often begins in the trial court immediately after the verdict. We file post-judgment motions such as motions for Judgment as a Matter of Law or motions for a new trial. These motions give the trial judge one last chance to fix the error and are often required to preserve issues for appeal.

We also manage the stay of execution. A money judgment is typically enforceable while the appeal is pending unless a bond is posted. We litigate the amount of the bond and secure stays to prevent the opponent from seizing assets while we fight to overturn the judgment. This financial protection is a vital component of the overall appellate strategy.