Top 10 Traps for the Unwary Trial Lawyer
by Jeremy Martin and Rebecca Tillery
The best trial lawyers understand what they need to do to get a judgment that will either withstand—or crumble under—appellate scrutiny, depending on which result favors their client. Generally a civil judgment will only be reversed on appeal if the appealing party can prove that: (1) the trial court made an error of law; and (2) that error was harmful. However, you must first prove to the court of appeals that you preserved your appellate complaint by raising it in the trial court. In the midst of a frenetic trial pace, it can be easy to fall victim to one of many common traps and pitfalls. Below—in no particular order—is a “top 10” list of problem areas.
1. Strive for a clear and complete record. The appellate court will be handed a dry written rendition of your trial in the form of the pleadings on file and the transcript of the trial. If your complained-of error is not apparent from that record, the appellate court will have no grounds to reverse. In this vein, do not forget to reduce all prior rulings to writing and make sure that everything is on the record during final trial.
2. Secure rulings on your objections. If you are complaining on appeal about the admission of certain evidence, you must show the appellate court a timely objection or motion to strike stating the specific ground of the objection if it is not apparent from the context.
3. Make an offer of proof for excluded evidence. If, despite your timely objection, the trial court still refuses to admit your evidence, you waive the error if you do not submit an offer of proof.
4. Urge a motion to strike. Sometimes merely objecting is insufficient and a motion to strike is required to prevent the appellate court from considering the objectionable testimony. For example, a motion to strike is necessary to exclude an answer of a witness made before an objection could be lodged, volunteer statements of the witness or non-responsive answers.
5. Secure a ruling on appellate attorney’s fees. If the trial court does not make any rulings on appellate attorney’s fees, then you will likely be unable to recover them. You must request it in the trial court, put on the proper testimony and evidence, and secure a ruling from your trial judge.
6. Offer transcripts from prior hearings. If your case is one with any significant prior hearings, do not forget to offer the transcripts from such hearings into evidence. A court of appeals will not review the transcripts from prior hearings, even those in the same case and before the same trial court judge, unless they were properly admitted into evidence at final trial.
7. Preserve objections to summary judgment evidence. There is a split among appellate courts regarding whether to recognize “implied” rulings on objections to summary judgment evidence. For now, you should incorporate your objections to summary judgment evidence in proposed orders granting or denying summary judgment.
8. Understand the perils of using running objections. Appellate courts are inconsistent in their view of running objections. In general, always request a running objection on specific grounds, make a new request for a running objection if similar testimony is sought from another witness, and do not forget to make proper objections to other objectionable testimony elicited while you have a running objection.
9. Use post-trial motions. If you have not already, this is the time to call your appellate lawyer and begin to get her or him involved. Post-trial motions and requests for findings of fact and conclusions of law can sometimes work to preserve error, extend your appellate deadlines and serve as fertile ground to “pad” the appellate record with evidentiary attachments and the like. Do not forget number 4, above, if you are on the receiving end of such actions.
10. Make sure the transcript reflects what happened. The increased use of multimedia trial presentations, while effective at the trial level, presents potential problems for court reporters in accurately recording the contents of those presentations. Provide a narrative description on the record of the presentation or, better yet, secure opposing counsel’s agreement to offer as an exhibit a CD containing multimedia trial presentations.
Rebecca Tillery is an associate at KoonsFuller, P.C. and the Co-Chair of the DBA Admissions & Membership Committee. She can be reached at email@example.com. Jeremy Martin is an associate at Malouf & Nockels, P.C. and is the former chair of the Dallas Bar Association Appellate Section and can be reached at firstname.lastname@example.org.