transcript during trial. Trial counsel should
work with the court reporter to identify the
portions of the deposition played so the reporter can transcribe the testimony into the
Frequently, matters discussed outside the
presence of the jury are the central issues on
appeal, such as disputed jury instructions.
Objections to specific instructions must not
only be made on the record, but must be
clearly and specifically stated. If an attorney does not object to an instruction that
is given, or to the judge’s failure to give a
requested instruction, he or she may waive
that objection on appeal. In addition, objections to jury instructions must be made
both when opposing counsel offers the instruction and after the judge rules whether
to give the instruction. When in doubt, ask
to make your objection on the record, and
make sure the judge gives a clear ruling on
the record in response.
Also, certain issues must be raised in
post-trial motions to be raised on appeal.
This is because the trial judge must be given a chance to correct the claimed error. In
general, the appellate courts will not correct
an error never raised with the trial judge.
Think about what you
hope to accomplish
Before you file an appeal, give considerable
thought to what you hope to accomplish and
what you plan to argue. It is not enough to
believe the trial court was “wrong.” You’ve
lost once; is the time and money you will
spend on an appeal the best use of your client’s resources? Is the appellate court likely
to see things differently than the trial court?
Why? Ask “Why” several times. If you cannot explain it to yourself, how do you hope
to explain it to three (or five, or nine, or
eleven) appellate judges?
What this really boils down to is that you
have to stop and THINK about your case
and what you will be advocating. This may
seem obvious, but it is very easy to drive
forward making the same arguments you
already made below using different words.
It may be better—or necessary—to change
your approach, strategy, and style.
Responding to an appeal also requires
thinking. Are there any downsides to win-
ning on appeal? Are the arguments that
worked before a busy trial court judge
going to be as effective before an appellate
court that has the staff and time to look at
the case and legal issues critically? Have your
client’s business interests changed since the
underlying litigation began? Win or lose, is
a published opinion on this topic going to
help your client—not only in this case, but
in future cases as well?
And if you are the appellee, and additional research undertaken to prepare the
appellate briefs leads you to conclude that,
much as counsel hates to admit it, there
was some reversible error in the trial court,
admit this quickly. The appellate court appreciates your candor and it saves everyone
involved a lot of work.
THINKING is the most important thing
you can do.
Keep your audience and
purpose in mind
You are no longer dealing
with a jury or a single trial judge. Your case
will be decided by several appellate judges,
and you may not know who is on your panel until after the briefs are filed. The judges
assigned will not be familiar with your facts,
and they may not be familiar with the issues
of law raised. Appellate judges are generalists who deal with myriad areas of the law.
Even if a particular judge once specialized
in the issues involved in your case, he or she
probably has not kept up with the details
over the years. Staff attorneys with experience and expertise may be involved in some
areas (e.g., criminal or workers compensation), but maybe not. Recently graduated
law clerks who will be reviewing the arguments and record for the judges will certainly not be experts. Educate the court in
your writings and oral presentation. Think
about how to present your case in a way that
the court will understand it—not necessarily
how you or your client understands it.
Also remember that appellate judges do
not really care who wins the case; they just
want to come up with the right answer under the law. They are quite willing to rule in
your favor, but only if you convince them.
Many advocates are so familiar with their
case that they get caught up in admiring
their own argument and forget to consider
how it sounds to an outsider to the case.
Step back and think about your audience.
Then go back and think again about what
you hope to accomplish.
It is also important to consider the purpose of the specific pleading you are filing. A
brief on the merits will cover all the relevant
facts and issues. A petition seeking discretionary review, however, must first attract
the court’s attention and make the judges want to hear your case. This is true for
special action petitions (Court of Appeals
or Arizona Supreme Court), petitions for
review (Arizona Supreme Court), or petitions for writs of certiorari (U.S. Supreme
Be prepared to lose
Very few appellate cases are
• Argue in a way that protects your client’s
a slam-dunk for one side.
You want to win your case,
• Craft your arguments to minimize the
damage. You can lose, but you can also
lose big. If your client’s interests in the
issue extend beyond this single appeal,
how the opinion is written may be as
important as the result.
• Argue in a way that protects your repu-
tation. Even if you have a loser on one
appeal, you will see those judges again
in a later case.
Your brief is your best
opportunity to tell your
story to the court
Most cases are decided without oral argument. Your brief is often your one and only
chance to communicate with the court, so
make it as clear and understandable as possible. Although good, engaging writing is a
must, there are particular things to keep in
mind as you write your brief:
Be direct. Consult resources that help you
remove excess language from your writing.
Style guides are a great resource. Try and
10 Tips for Effective Appellate Advocacy