Appeals/Post-Trial Matters Legal Topics Litigation Strategy Trial Strategy

Keep an Eye Toward an Appeal

careful_87453733Trying a case is hard enough, but throughout trial you should also keep in the back of your mind the need to preserve the record for appeal.

Why is it so important to pay attention to the record during trial? It all comes down to a major difference between the trial court and the appellate court: the appellate court doesn’t take testimony, reweigh evidence, or redetermine credibility findings or other disputed factual questions. The record on appeal is made up of the relevant documents presented to, and transcripts of oral proceedings in, the trial court.

As trial counsel, you should think about record issues during the trial court proceedings for two major reasons:

  • The appellate court will consider only matters reflected in the record. If the error isn’t reflected in the record, it doesn’t count. This means that you must ensure that there’s an adequate record to prosecute or defend against any subsequent appeal.
  • The appellate waiver/invited error doctrines may preclude a challenge on appeal. The appellate court generally won’t consider issues, evidence, arguments, or objections that could have been raised in the trial court but were not or were expressly or impliedly waived. Under these doctrines, a party generally can’t change its position and adopt a new and different legal theory on appeal. Similarly, parties generally can’t raise new issues on appeal.

The process of ensuring that the record will be adequate to preserve issues has to start long before the time comes to designate the record on appeal. So, yes, you have one more thing to think about during trial.

For everything you need to know about preserving the record for appeal, turn to CEB’s California Civil Appellate Practice, chapter 4.

Related CEBblog™ posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 replies on “Keep an Eye Toward an Appeal”

Thank you for this reminder and pretrial checklist of appellate issues. It’s way too easy to get tunnel vision while preparing for trial, and then proceed on the unspoken assumption that everyone in the courts is just as aware of the scenario as the trial judge.

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