Laurie Webb Daniel chairs Holland & Knight's Appellate Practice Group. Her experience includes arguments before the United States Supreme Court, and other federal and state appellate courts, as well as the authorship of numerous appellate briefs. Her appellate work has involved subject areas such as antitrust law, banking law, business torts, employment law, and many types of commercial disputes. She also has experience with complex business litigation in the trial courts, including multidistrict litigation.
Ms. Daniel has been elected to membership in the American Law Institute and as a fellow of the American Bar Foundation. She presently serves as Co-Chair of the Amicus Curiae Committee of the American Bar Association's Litigation Section, having previously served as a subcommittee co-chair of the Appellate Practice Committee.
I. BEGIN PREPARING FOR THE APPEAL AS SOON AS YOU GET THE CASE.
Too often, lawyers make the mistake of considering the issues for appeal only after they have lost the case in the trial court. A lawyer who waits until receiving an adverse jury verdict before thinking of the appeal, however, likely has waived at least some arguments, perhaps even the best ones. To ensure that your case is in the best posture on appeal, you should prepare for the possibility of appeal during every stage of the litigation. Laying an early foundation for an eventual appeal early is never a waste of resources. Even if there is never an appeal, it strengthens your position with respect to settlement or trial. If the case does not settle and things turn out badly at trial, it gives you the most flexibility in framing your request for a reversal.
A. BEFORE ANYTHING ELSE, DEVELOP YOUR "ROADMAP."
One of the best ways of preparing for an appeal is to develop the "roadmap" for your case. The most effective roadmap is a thorough written analysis addressing the legal theories of the case as well as all applicable standards and burdens of proof. For example, if you are representing the plaintiff, even before filing your complaint you should analyze the controlling authorities, then list each of the essential elements of your claims and the facts on which you will rely to satisfy them. You should anticipate the defenses that will be lodged and discuss your proposed rebuttal. If you are defending the case, you should conduct a similar analysis to make sure that you know from the start what defenses to plead in your answer and what evidence you will need to present to support them.
B. USE YOUR ROADMAP AS A CHECKLIST FOR YOUR PLEADINGS, MOTIONS AND TRIAL PREPARATION.
It pays to spend the time to produce a comprehensive written analysis early in the case because the effort will provide guidance, hopefully a checklist, later on when you are preparing your discovery requests, motions, pretrial order, witness outlines, exhibits, Rule 50 motions and, if necessary, your appeal. With the legal theories, standards and burden of proof memorialized in writing, you will have an easy reference to use throughout the case to make sure that you don't forget an important point. Such a memorandum is particularly helpful in a case that spans years with intermittent dormant periods.
The roadmap, of course, should be updated at each new stage of the litigation to include new developments of fact or law. Even with such updates, however, the initial analysis usually continues to provide the underlying structure for the development of the case for trial and any eventual appeal. Indeed, much of the analysis of controlling authorities in a well crafted initial "roadmap" can be copied verbatim into a summary judgment brief and then carried forward into the appellate brief when the time comes.
II. MAKE SURE THAT YOUR PRETRIAL ORDER IS COMPLETE.
Under F.R.Civ.P. 16, the pretrial order supersedes the pleadings and "shall control the subsequent course of the action . . . ." It is important to remember that Rule 16 not only shapes the trial of a case by identifying witnesses and documents, it also serves to shape the issues on appeal. Courts have strictly construed Rule 16 to bar review of an issue that was omitted from the pretrial order. See Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1529 (11th Cir. 1989). See also American Nat. Bank & Trust Co. of Chicago v. Regional Transportation Authority, 125 F.3d 420, 429 (7th Cir. 1997) (appellate review of strict enforcement of pretrial order is deferential). It is important, therefore, to include all legal theories in the pretrial order.
III. OBSERVE THE TEN COMMANDMENTS FOR PRESERVING THE RECORD AT TRIAL.
The trial of a case provides the most fertile ground for error. Unless the error is brought to the attention of the district court, however, it will not support a reversal. With rare exception, the federal Courts of Appeals adhere to the fundamental rule of appellate practice that a point not raised below is waived. See e.g., Dudley v. Wal-Mart Stores, Inc., 166 F.3d 1317, 1323 n. 9 (11th Cir. 1999); United States v. Gilkey,118 F.3d 702, 707 (10th Cir. 1997); Foley v. City of Lowell, Mass.,948 F.2d 10, 22 n. 17 (1st Cir. 1991).
While the types of possible errors at trial are numerous and various, there are some standard methods of preserving points for appeal. Following are ten "commandments" to keep in mind when trying your case.
FIRST: WHEN POSSIBLE, SUBMIT YOUR POSITION IN WRITING.
Obviously, if you state your position in writing and file it with the clerk of court, it reduces questions about whether it is preserved. For this reason, it is a good idea to submit your arguments and objections in writing, when possible. For example, consider doing the following:
? File Written Motions In Limine Before Trial.
? At the Beginning of Trial, File A Trial Brief That Outlines Your Case.
? File Short Trial Memoranda On Unexpected Issues That Come Up During Trial.
? File a Written Brief Stating Your Position With Respect
To a Rule 50 Motion For Judgment as a Matter of Law.
? In Addition To Submitting Your Requested Jury Instructions In Writing, File Written Objections to the Instructions That Are Given.
? Use Both the Broad Brush and Fine Point Pen When Presenting Your Case.
SECOND: FOLLOW UP MOTIONS IN LIMINE WITH NECESSARY OBJECTIONS AND PROFFERS OF PROOF.
Motions in Limine are a good idea because they raise issues before the heat of battle when they can be decided outside the presence of the jury. Often, however, litigants fail to follow up after an adverse ruling to preserve their objections for appeal. This is an easy mistake to make because one would think that a party's position should be preserved if stated in a brief filed in connection with a motion in limine. If the district court denies your motion in limine, however, you should object to the evidence when it is offered at trial to preserve the issue on appeal. See United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000); Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492, 1503-04 (11th Cir. 1985); Petty v. Ideco, Div. Of Dresser Indus. Inc., 761 F.2d 1146, 1150 (5th Cir. 1985). Further, if the district court grants your motion in limine but the evidence nonetheless comes in at trial, you must renew your objection at trial in order to preserve the issue for appeal. See Collins v. Wayne Corp., 621 F.2d 777, 785-86 (5th Cir. 1980). If the district court grants your opponent's motion in limine, you should make a proffer of evidence unless the substance is readily apparent from the context of the court's ruling. See F.R.E. 103(a)(2).
THIRD: BE POLITE -- BUT NOT BASHFUL -- IN MAKING OBJECTIONS.
If there is one particular subject on which trial lawyers and appellate lawyers disagree, it is whether to object during an opponent's closing argument. Many trial lawyers keep their silence even in the face of outrageous arguments out of concern that an objection will offend the jury. Then, when a disastrous verdict is rendered, they condemn the unfair tactics of opposing counsel. Without an objection at trial, however, even the most egregious misconduct of opposing counsel will escape review by the appellate court. The advice of the appellate practitioner, therefore, is to go ahead and make the objection --during the closing argument --but in the most polite way possible. That way, you will preserve your objection for appellate review. Moreover, you likely will not make your position any worse off with the jury than it was before. If a jury is going to hold such an objection against you, it most likely has already made up its mind in favor of the other side anyway. You are better off buttressing your position for appeal.
The same view applies to other types of objections during the course of trial, beginning with voir dire and the opening statements. If faced with improper and prejudicial questions, evidence or conduct, be polite -- but not bashful -- in making your objections. A bench conference sometimes helps alleviate concerns over offending the jury. The bottom line, however, is that timely objections are critical to preserving your position for an appeal. Without a proper objection, there is very little chance of appellate review. Of course, if you are confident that the opposing counsel has not hurt your case, you do not need to make the objection.
It also is important to stay alert to the need for objections. For example, don't forget to object to deposition testimony that is read at trial. Your objections to such testimony in the pretrial order will not protect your position if they are never ruled on by the court. You should make sure that your objection is made during trial when the deposition is read unless it previously is preserved in the trial record.
FOURTH: MAKE SURE THAT EVERYTHING IS REPORTED.
You cannot appeal an incident that is not reflected in the record. It is very important, therefore, to make sure that the court reporter takes down everything that occurs of significance. This is not usually a problem during testimony. Sometimes, however, issues come up during a break. Be sure that the discussion is recorded or, at least, that a summary of the discussion is later placed on the record. Bench conferences likewise should be reported.
FIFTH: GET RULINGS.
It is not sufficient merely to make an objection or a motion in limine or motion to strike. In order to have something from which to appeal, the district court must rule on the point. See United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000). Therefore, if you object during the examination of a witness, do not allow your opposing counsel to continue the examination until the court has ruled on your objection. If the court has taken a motion in limine under advisement and your opponent begins to offer the objectionable evidence, get a ruling on the point before the evidence is presented to the jury.
SIXTH: MOVE FOR A MISTRIAL WHEN A "CURATIVE" INSTRUCTION IS INSUFFICIENT.
Sometimes the court sustains an objection after the damage has been done, for example, after the witness has answered the improper question or after the jury has heard the improper closing argument. In such a circumstance, you have two available remedies: you can ask for "curative" instructions or you can move for a mistrial. Curative instructions, however, generally are not thought to cure anything, except the chance for an appeal based on the incident. The jury has already heard the damaging statement and the "curative" instruction likely only will reinforce the jury's memory of it. Moreover, if curative instructions are given, the appellate court usually will find the instructions sufficient to prevent harm. See United States v. Flores-Rivera, 56 F.3d 319, 329 (1st Cir. 1995). If faced with a particularly damaging transgression, therefore, it is better to go ahead and move for a mistrial without seeking curative instructions. See Government of Virgin Island v. Charleswell, 24 F.3d 571, 577 (3rd Cir. 1994) (since party requested corrective instructions rather than a mistrial, trial Judge was entitled to assume that party did not want a mistrial). If the court suggests curative instructions, present it with the reasons why the instructions are insufficient to remedy the harm.
SEVENTH: USING YOUR ROADMAP AS A CHECKLIST, MAKE SURE THAT ALL OF YOUR EVIDENCE HAS BEEN ADMITTED OR PROFFERED BEFORE YOU CLOSE YOUR CASE.
You should not rest your case without making sure that all necessary evidence has been admitted or, if it was excluded, at least proffered. See F.R.E. 103. Your "roadmap" will help with this by providing a list of the essential elements of each cause of action and defense and the evidence that you are relying on in support of your position. You should check with the courtroom clerk regarding the admission of documents to confirm that your list of admitted exhibits is accurate and that you haven't missed anything.
If you are the plaintiff facing a motion for directed verdict and realize that you missed an important point, you can seek to reopen the evidence to remedy the omission. After all, one of the reasons behind the rule that limits a post-trial motion for judgment as a matter of law to the grounds advanced in support of the pre-judgment Rule 50 motion is that the plaintiff should have the opportunity to respond to the points made in the Rule 50 motion before the case is submitted to the jury. See Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1289 (11th Cir. 1998) (instructing that Rule 50 was designed to protect a litigant's Seventh Amendment right to cure evidentiary deficiencies before the case goes to the jury).
EIGHTH: PRESENT EVERY POSSIBLE ARGUMENT THAT YOU HAVE TO SUPPORT YOUR POSITION ON A RULE 50 MOTION FOR JUDGMENT AS A MATTER OF LAW
Your Rule 50(a) motion for judgment as a matter of law at the end of your opponent's case should be as inclusive as possible because you cannot prevail on a post-trial Rule 50(b) motion on any ground not raised in your initial Rule 50(a) motion, nor will an appellate court rule that you are entitled to judgment as a matter of law on a new ground not raised in connection with your initial pre-judgment Rule 50(a) motion. See Ross, 146 F.3d at 1289-90. See also Morrison Krudson Corp. v. Fireman’s Fund Ins. Co., 175 F.3d 1221, 1246 (10th Cir. 1999) (failure to renew Rule 50(a) motion limits appellate relief to new trial). But see Rankin v. Evans, 133 F.3d 1425, 1432-33 (11th Cir. 1998) (holding that technical non-compliance with Rule 50 requirements was excused where court and opposing counsel had actual notice of grounds for asserted deficiencies).
It is a good idea to prepare your initial pre-judgment Rule 50(a) motion and supporting brief early, if possible before the trial even starts, when you have time to carefully consider the points. It then can be revised at the end of trial as needed to reflect the actual evidence that was admitted. Usually, the legal arguments will remain the same and the evidence will not vary much from what you anticipated. Also, incorporate by reference into your Rule 50 motion any points that you made in pretrial motions as well as any other written submissions such as objections to requested jury instructions.
When making your initial Rule 50 arguments, try to be both general and specific. State your proposition in a general manner and offer specifics as examples without limiting the argument to the specifics offered. Sometimes a general argument is deemed broad enough to preserve an interrelated concept that is explained more thoroughly for the first time in post-trial motions or on appeal.
NINTH: IF YOU FAILED TO INCLUDE A LEGAL THEORY IN THE PRETRIAL ORDER, MOVE TO AMEND THE PLEADINGS PURSUANT TO F.R.CIV.P. 15(b).
As mentioned earlier, the pretrial order supersedes the pleadings and is meant to control the trial of the case. Sometimes evidence relating to an omitted theory is nonetheless admitted at trial. If so, the omitted legal theory can be redeemed through a motion to amend the pleadings to conform to the evidence pursuant to F.R.Civ.P. 15(b). This rule provides that even when the evidence has been objected to at the trial on the ground that it was not within the issues made by the pleadings, the court shall freely allow the pleadings to be amended. At the very least, a Rule 15(b) motion will enhance the chances of appellate review of the omitted legal theory.
TENTH: OBJECT TO ANY IRREGULARITIES APPEARING IN CONNECTION WITH THE JURY INSTRUCTIONS, THE JURY'S DELIBERATIONS OR THE FORM OF THE VERDICT.
It is well established that "[n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection." F.R.Civ.P. 51; Heath v. Suzuki Motor Corp., 126 F.3d 1391, 1934 (11th Cir. 1997). You should make sure, therefore, that the record reflects your objections to the jury instructions and that your grounds for objection are clearly stated. Otherwise, you will be deemed to have waived your objection on appeal unless the very narrow plain error doctrine applies. See Alexander v. Riga, 2000 WL 295288, *7 (3rd Cir. 2000).
The form of the verdict often does not receive the attention that it deserves. Usually, it is discussed at the end of the trial when the parties and the court are worn down by other battles that precede it. The form of the verdict, however, sometimes provides an easy ground for reversal. For example, in the Eleventh Circuit, a general verdict will not stand if any of the theories presented to the jury were defective. See Richards v. Michelin Tire Corp., 21 F.3d 1048, 1055 (11th Cir. 1994); Grant v. Preferred Research, Inc., 885 F.2d 795 (11th Cir. 1989). On the other hand, a special verdict form sometimes runs the risk of producing an inconsistent verdict that cannot stand. These issues should be thought through in advance of trial and you should be prepared to address them if the court decides to submit the case on a verdict form that could cause problems. If you fail to object on the record to the form of the verdict before the jury is released, you will be deemed to have waived the objection. See United States v. Mitchell, 146 F.3d 1338, 1342 (11th Cir. 1998); Landsman Packing Co., Inc. v. Continental Can Co., 864 F.2d 721, 726 (11th Cir. 1989).
Similarly, you should state on the record all objections to the handling of jury questions during deliberations. To do so, make sure that every juror communication is taken down by the court reporter, and that your position on the communication is presented to the trial court at a time when it can remedy the concern.
Please keep in mind that this list of "ten commandments" is not meant to be a catalog or exhaustive list of necessary objections. Always stay alert to possible error and think about whether there is anything that you need to do to make sure that your position is adequately reflected in the record.
IV. USE POST-TRIAL MOTIONS TO CLEAN UP THE RECORD.
Of course, you should do everything possible to state your position clearly on the record during trial. Sometimes, however, a point will hit you after the trial is over. If you are in the unfortunate position of trying to salvage your case through a post-trial motion, consider whether the "new" point is related to one of the general points asserted during trial. Often arguments at trial are in need of further clarification and elaboration. There is nothing improper about explaining a concept further in a post-trial motion using new authorities, examples or closely related arguments. See National Indus. Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549-50 (11th Cir. 1986). Post-trial motions are useful for "cleaning up" the record to make sure that you have properly explained your legal theories. One thing is for certain. It is better to make the argument in the post-trial proceedings than to raise it for the first time on appeal.
V. CAREFULLY REVIEW THE RECORD ON APPEAL AND MOVE TO SUPPLEMENT WITH INTERVENING OR OMITTED MATERIAL.
The appellant is responsible for ordering the transcript. If the appellant does not order the entire transcript, the appellee has the opportunity to request that the entire transcript be included on appeal. Of course, it is safer to have the entire record included. You should check the local rules of the appellate court for requirements that might be peculiar to that court with respect to the record on appeal.
Counsel should carefully review the record index to make sure that all items filed in the district court are included in the record on appeal. Sometimes the clerk's office does not include a filing, such as a letter to the judge, in the record index. Also, it sometimes is unclear whether exhibits to a filing are in the record on appeal. If in doubt, consider paying a visit to the district court clerk's office to inspect for yourself the way that the record on appeal is put together. Then, if you discover that a filing has been omitted from the record on appeal, you can move to supplement the record.
Occasionally, there is an intervening development that comes up after the trial that is proper for inclusion in the record on appeal. If so, the rules provide for a method of supplementing the record on appeal to include such matter.
It is important to remember that appellate review is limited to the record before the appellate court. Take every measure, therefore, to make sure that all of your legal arguments and supporting materials are contained in the record on appeal.