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.


My First Appeal to Reason

At a recent dinner party, I was talking to a seasoned trial attorney. When I told him that I was an appellate attorney, he became quite animated. “I don’t know anything about appeals!” He announced with unmistakable pride. “I just win my cases and don’t worry about appeals.”

I could not help but look at him in awe. Yes, I was in awe of his . . . arrogance. Not only was my role in the appellate process ignored – I was unnecessary! – but I was concerned his arrogance might eventually cause his clients to lose their appeals.

His attitude, although taken to an extreme, is not that unusual. I have received calls from trial attorneys asking about the procedures involved in the appellate process. Their common refrain is “I don’t handle appeals. It’s not my area.” While appellate procedure is a specialized area of law and procedure (although one can still find trial attorneys handling their own appeals), it often overlaps into the realm of the trial attorney.

If a client came to you to discuss a potential personal injury claim, you would certainly advise them of the applicable statute of limitations and the final date a complaint could be filed. In my opinion, the same principle applies at the end of the case. Once a judgment has been entered (or even before), you need to advise the client in writing about the deadline for filing an appeal. At a minimum, trial attorneys must understand enough about the appellate process to know the deadlines for filing a notice of appeal. And if they ignore what happens after the judgment is rendered, they do so at their peril.

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