Sponsored by Salesforce
Client intake is important. Do it right.
Salesforce is the gold standard for providing the tools that firms need to manage client relationships.
Start your free trial →
Reading the recipe after the cake’s out of the oven isn’t as helpful as following it from the start. Neither is preparing for an appeal once a trial is over, which is why we’re checking in with Christina Vassiliou Harvey of Lomurro Law in New Jersey. She handles appeals both for cases she tried herself and for cases handed to her after someone else lost at trial, so she has seen what happens when nobody planned ahead: missing exhibits, arguments never made and objections that disappeared into an unrecorded sidebar. Her view is that you win (or lose) an appeal long before the notice is filed, so she’s got some advice on how to prepare for a potential appeal at trial.
—Interview by Emily Kelchen, edited by Bianca Prieto
Most litigators think about appeal strategy only after they've lost. Why is that already too late?
Thinking about an appeal after you lose harms your chance of success on appeal because you have not done things to perfect the appeal. For instance, except in rare circumstances, the appellate court will decline to exercise original jurisdiction over a question. Therefore, unless you raised the issue with the reasoning why you win at trial, the appellate court will not hear the matter.
Give me an example of a case where you knew, mid-trial, "This one's going up on appeal.” What tipped you off?
The tip-off is usually when the trial judge relies on a proposition of law that is incorrect, and the error is capable of prejudice. While you do not always know how the end will turn out, when admission of a piece of evidence — or exclusion of a piece of evidence is so important that, but for that error, the result would be different, an appeal is likely.
More broadly, what are the signals you look for that a case has potential for a successful appeal?
The adage “Good facts make good law, bad facts make bad law,” applies in deciding when to take an appeal. Just because a client wants to appeal does not mean it should necessarily be filed. There can be great risk to taking an appeal when the facts are not on your side.
Researching the status of the law is also key. For instance, I had an appeal where trial courts repeatedly applied a case from the 1970s. At first glance, it looked like the case was under the Comparative Negligence Act, but it was not. We were able to overturn years of rulings misapplying this case by paying attention and pointing out the legislative history.
Do you ever build an appeal strategy for a case you expect to win at trial?
You want to always plan for the possibility of appeal, including defending an appeal if you believe you are going to win. You prepare by making sure you include documents that you will need for an appellate court to review or making sure you include case law that might be relevant to an appealable issue. For instance, if you have a case of first impression, and you know other courts outside of the state have dealt with the issue, you should consider including that out-of-state law so the trial court can consider it.
So whether you think you’re going to win or lose, what are the most important things you are doing to prepare for appeal during trial?
Make a record. And don’t be scared to speak up if the judge is not doing it for you.
Think about the consequences of strategic decisions because they could impact your case down the road.
Review your docket to make sure you have preserved all issues.
Read the case law to make sure you are not barred from making certain types of arguments on appeal.
Any tricks for getting things on the record?
Simply stating “Judge, I’d like to make a record,” will usually command the respect of the court. It might also modify a judge’s behavior by permitting potentially more analysis.
Sometimes it will give the judge pause to reconsider sua sponte, or sometimes, it will yield further explanation of the judge’s decision, which is often helpful to an appellate court.
If a judge is handling the matter in chambers or off the record, then you need to respectfully request, once you go back on the record, to put the discussion on the record. Most judges will respect your right to do so.
Another idea is to follow up by letter that is placed on the docket to confirm an off-the-record discussion.
How do you talk about appeals strategy with your clients? Or do you loop them in?
It is best to discuss with a client. The client might not want an appeal of record. There may be reasons the client wants to stay out of appellate courts. For instance, even though the trial court dockets are not sealed, it is not as open to the public as the appeals courts are, where every matter yields a written decision that can be found online – even if it is unreported and non-precedential. This is an important discussion to have with your client before you appeal.
Bonus Round: What’s something currently on your radar that’s shaping how you’re thinking and working right now?
Honestly, it's dinner. Keeping up with my appellate practice and two young kids means I've had to get efficient about healthy home cooking, and that's how my blog, Cooking Up Justice, started. It turns out the kitchen and the courtroom reward the same habit: do the prep work up front, and you won't be scrambling when it's time to serve.
Raise The Bar’s Take
Your appeal is only as good as the record you build at trial, so build it while you still can. Get sidebar rulings on the transcript, make the argument you'd actually want to win on and learn your jurisdiction's waiver traps before they catch you. The best appellate strategy starts on day one of trial, not the day after the verdict.
Don't miss this
Thursday's newsletter: Will lawyers have to start paying for AI insurance?
The most recent Q&A: Marketing 101: Fractional, in-house or agency?
In the vault: Every firm growth and marketing lesson we've published for small firms this year
Thanks for reading this week's edition! You can reach the newsletter team at [email protected]. We enjoy hearing from you.
Interested in advertising? Email us at [email protected]
Was this email forwarded to you? Sign up here to get this newsletter every week.
Raise the Bar is written and curated by Emily Kelchen and edited by Bianca Prieto.
