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Trial attorneys need to understand fundamental rules of appellate procedure.

Trial attorneys need to know the fundamental rules of appellate procedure. You cannot leave it to the appellate attorney because by the time we get involved, it may be too late to raise the issue or preserve the record. You are the one who has the opportunity to create the record; appellate attorneys are limited by your creation.

Let’s take one of the most fundamental rules of appellate procedure: new issues ordinarily cannot be raised for the first time on appeal. (Yes, of course, there are exceptions but we won’t discuss them here.) These “issues” can range from something as simple as failing to object and obtain a ruling on your objection to ignoring serious misconduct by the court, opposing counsel or the jury when it occurs. They may also include raising new theories of liability, defenses, and damages.

Documents and facts that were not presented below do not become part of the record, and as a consequence, they cannot be considered on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) If you decide not to bring out certain facts at trial, the appellate court will never know they existed. The appellate attorney is powerless to present those facts and documents that you failed to present at trial.

What does that mean for the trial attorney? It means trial attorneys cannot ignore the need to understand the appellate process. They must learn how to act at the trial court level to protect their clients’ rights on appeal. They certainly don’t want to find themselves in a situation where they are deemed to have waived their clients’ right to object or even invited the error of which they now complain.

I cannot stress the importance of the need for trial attorneys to do their job. Time and time again, I have been retained to work on an appeal, only to discover a point on appeal has been lost due to the acts or omissions of the trial attorney. By saying “lost,” I don’t mean the issue can be “found” or resurrected. No, it is lost forever. And sometimes it is just one issue of several, but on other occasions, the loss will deal a death blow to the entire appeal.

Reader Comments (3)

Donna- As a trial attorney with more than 21 years of experience, I can easily confirm the important need of getting appellate counsel involved early rather than later. Depending on the outcome of discovery orders or pre-trial motions, the foundation may need to be set (with the guidance of appellant counsel) as to what the record needs to show for appeal purposes. Great blog and I look forward to your ongoing articles!

December 5, 2007 | Unregistered CommenterMitch Jackson

Donna -

Great post. As a younger trial attorney than Mitch, it is great to get some insight into why I need to bring in appellate counsel.

Thanks for sharing great information with us!

January 3, 2008 | Unregistered CommenterJonathan G. Stein

Right now I'm having amnesia and deja vu at the same time. I think I've forgotten this before.

March 1, 2008 | Unregistered CommenterCamden Deladurantaye

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