Under pressures of trial a lawyer may be tempted to consider preparing for appeal little more than a distraction from the business at hand. But ignoring the appellate process at trial can be costly, and preparing for it not unduly onerous.
Lawyers who prepare for appeal in the trial court usually have to.” Those words have resonated with many trial lawyers, already confident in their abilities to persuade and by nature not always inclined to deal with the grubby details of “making a record.” Eventually, those lawyers run into the reality that too-simple rules often overlook: those who ignore the appellate process at trial often encounter serious—sometimes terminal—roadblocks to obtaining review.
Our goal here is to help Minnesota lawyers avoid problems on appeal without unduly tying the trial lawyer’s hands.
A truth that is both obvious and often overlooked is that the single best way to win on appeal is “be the respondent (or appellee)”; in other words, win in the trial court! The odds on appeal rarely favor the appellant—a strong appeal may be one in which the appellant has merely a fighting chance of victory. So, yes, by all (proper) means, win in the trial court.
But to keep some hope alive in the case your best plans for victory go awry and you have to appeal, a few basics can improve your odds considerably.
Basics of Appellate Review
Parties have a right to a fair trial. As in a right to one fair trial. If you get one fair trial, you may not have anything to complain about. It is important to remember as well that you are entitled only to a fair trial. Not a perfect trial. If you lose your trial, somehow you will need to convince an appellate court that you didn’t get a fair trial—either that the process was unfair, or that the court failed to follow the law, or somehow that the trial produced an unfair result. The focus is on whether the trial was fair, however, not on whether the result was “fair” or “correct,” and certainly not on whether it was perfect.
Appeals are not a means of getting a “do-over” because things didn’t turn out right in an initial trial. The appellate court doesn’t retry the case or any of the issues—it reviews what the trial court did, and it reviews only what appears on the record. Appellate courts universally apply some form of limited review of trial court decisions, deferring to trial courts not because trial court decisions are perfect, but because they are intended to be, in most cases, the final answer. As the Supreme Court eloquently put it: “The trial on the merits should be ‘the main event … rather than a try-out on the road.’”1
If you don’t raise an issue with the trial court—either by making a motion, making an argument, offering evidence, or objecting to the other side’s efforts—it won’t be part of the appeal. It often is just a matter of fundamental fairness in the eyes of the appellate court; the appellate court will not reverse a trial court on something that was not even raised with the trial court.2
Making the Record
If it isn’t on the record, it didn’t happen. Appellate courts review cases on the record; if it isn’t there, it can’t affect the appeal. It really is as if it didn’t happen.3 The record comprises the transcript of proceedings (if one is provided!) as well as the exhibits received and the papers filed in the trial court. Notice what isn’t part of the record:
Oral arguments and evidence presented without the court reporter being present or for which the transcript is not provided to the appellate court.
Decisions or directions from the judge in bench conferences or in chambers if the court reporter is not reporting the conference.
Exhibits that were offered but not received in evidence.
Papers that may have been given to the trial judge, but not filed with the court. These papers may include the fruits of discovery in the case, which are no longer routinely filed.4
Portions of depositions read to the jury in the absence of a court reporter. If you are reading in deposition testimony in lieu of live testimony at trial, make sure the questions and answers actually read are transcribed anew in this trial or, if the record will be the redacted prior testimony, make sure it is both unambiguously marked as to what is read and how objections are resolved and that the deposition booklet is filed to be part of the transcript in the case. (It is not an exhibit that goes to the jury; it is testimony like any other testimony.)
Once these matters are understood, it is relatively easy to make sure that arguments made “for the record” appear on it, and that motions and affidavits are actually filed with the court. Often, these matters can be assigned to one member of the trial team to make sure they are done.
Make appropriate evidence objections. The choreography of evidence objections is not difficult:
Object to the admission of evidence by saying, “Objection,” and then stating the grounds in one or two words. “Objection, hearsay” is a perfectly adequate objection.
Make your objection on the record. If you have to make the objections in chambers, have the court reporter there or place the objections on the record as soon as possible thereafter. Most judges will readily permit this, but they may not take the initiative to make sure it happens—you should.
Get a ruling. You are entitled to have the judge rule on your objections. If there are multiple objections, find out just what was sustained and what was overruled.
If you are offering evidence and a foundation objection is both sustained and inscrutable, ask how foundation is lacking. Usually it is easy to remedy by a follow-up question or two.
Make an offer of proof. If the court excludes evidence you think is important (let’s face it, even you think some of your exhibits don’t really make much of a difference), make an offer of proof. And do it with the primary goal of getting the trial judge to see it your way. Trial judges do change their minds—if you can demonstrate how the evidence is probative and important to your case, and that the objection is in fact not well-taken, the evidence may well be admitted. If it isn’t, there is a clear record of these facts for the appellate court, and the appellate court won’t act unless the offer is made.
Motions in limine present many of the same issues as rulings during trial. Both for the record, and for the chance to change the judge’s mind, it is probably prudent to reoffer any exhibits that were excluded before trial in response to a motion in limine. The rules of evidence make this unnecessary if the court excludes it in a “definitive ruling” in limine,5 but it is dangerous to assume that a ruling fits that opaque label. And, again, the judge might easily have a new view when the offer is now made in the full context of a trial record, with a live witness rather than a cold affidavit to lay the foundation for the exhibit. In some cases, the scope of the evidentiary issues may have actually expanded by the other side’s “opening the door.” Again, as to rulings on motions in limine, judges repeatedly say that they have had the light bulb go on, and finally “get it.” Most judges are not too stubborn to enter the correct order at that time.
Attend to jury instructions and verdict forms. The rule here is also simple, but worth restating. There are two distinct steps to be taken: 1) requesting the instructions (in writing)6 and verdict forms you want; 2) objecting to the instructions and verdict given by the court. The important thing is not to confuse the two. Requesting an instruction does not preserve an objection to the judge’s instructions, and objecting to the charge does not constitute requesting the instruction you will later want to claim you requested. If you don’t request the instruction and object to the instruction you later claim was erroneous, it will not be reviewed on appeal. Objections to jury instructions and verdict forms must be made before the jury retires.7 The best practice is to restate all the objections on the record after the instructions and before the jury retires.
Raise all your claims of “error” in the appropriate post-trial motion. Trial judges get two chances to “get it right.” Fair or not, logical or not, it is true in both state and federal court: if you fail to raise many appellate matters in an appropriate post-trial motion, appellate review will be narrow (or, in some instances, virtually nonexistent). The procedures at the federal and state levels are not quite identical, however.
In Minnesota courts, the key motion is a motion for a new trial. As to matters that occur during trial, every issue about the trial must be raised in a motion for a new trial, and the disappointed litigant should appeal from the order deciding that motion. Failure to take both steps will limit appellate review to the questions of whether there was sufficient evidence to support the decision and whether the judgment was supported by law. For bench trials, a motion for a new trial still is prudent, though the Minnesota Supreme Court has ruled that a motion for amended findings will be sufficient to preserve the issues, including issues such as the propriety of evidence rulings.8 (If the case is adjudicated without a trial, as on summary judgment, a motion for new trial makes no sense and is therefore not required.) A motion for judgment as a matter of law is not necessary to obtain full appellate review in state court.
In federal court, the correct path is to move for judgment as a matter of law during and at the end of trial, and to renew the motion after trial. Again, failure to bring these motions results in narrower review, but the motion for new trial (so important in state court) is not necessary.
These requirements are admittedly formalistic, and sometimes seem inappropriate, but they reflect a deep-seated sense of appropriate appellate restraint. As the Minnesota Supreme recently observed:
We have recently explained that the purpose of requiring litigants to move for a new trial is to “aid the district court in reconsidering objections to issues that arose during trial. When objections are made during the course of trial, the court must make quick, on-the-spot decisions. The motion for a new trial gives the court time to consider the context of the objection and the effect the error may have made on the outcome of the case. This permits the court to more fully develop the record for appellate review or to correct its own mistake and alleviate the need for appellate review.”9
The additional reason for bringing these motions, which one should not fail to recognize, is that they are sometimes granted by the trial court!
Forget about motions for reconsideration. The motions discussed in the prior paragraphs have an important role in making a record and preserving the issues for appeal. “Motions for reconsideration” are likely, at best, only to fail to preserve the issues and, at worst, to cause the appeal time to run while the party waits for a ruling that is nearly certain to be unsatisfactory (at least to the moving party). The only good use for a motion for reconsideration is if you think the trial court will promptly fix something, and obviate an appeal.
If you appeal, make sure to appeal from what’s necessary. As a general, over-inclusive rule, the advice would be: appeal from the final judgment and from any appealable order denying the post-trial motions. This will allow plenary review on appeal of any issues that have been preserved for appeal. It may be possible to appeal from only one or the other of these adjudications. If there is no question about how a trial was conducted, what evidence was considered, and what instructions were given, an appeal from the judgment may suffice; in most cases, however, a careful lawyer will appeal from two things: the final judgment and the order denying the post-trial motion.
Attend to a few housekeeping matters. The day before your brief on appeal is due to be filed is not a good time to figure out that some of your key exhibits are somehow not included in the court’s collection of exhibits, or that they were not transmitted to the appellate court, or that various papers you were allowed to “file” with the trial judge never made it into the official court file. If there is any likelihood of an appeal, prudent counsel will review the exhibits and the court docket sheet to make sure that what should be there is in fact part of the court file.
Remember that even victors can be parties to appeals. Even if you win and don’t have to appeal, your adversary might. These suggestions about preserving matters for appeal will assist you in the role of respondent or appellee as well. Winning an issue on the basis of evidence that is not in the record or on an objection that is not made on the record provides a flimsy basis for affirmance on appeal, and an opportunity for your adversary.
Preparing for victory in the trial court should include taking the steps necessary to present to any appellate court why the trial court proceedings either were or were not fair to the parties and in conformity to the law. These steps are not onerous and may actually improve your chances of success in the trial court.
1. If you don’t raise an issue with the trial court, it won’t be part of the appeal.
2. If it isn’t on the record, it didn’t happen.
3. Make appropriate evidence objections.
4. Make an offer of proof.
5. Be careful with in limine rulings—renew the offer or objection at trial.
6. Request jury instructions and verdict forms you want and object to what is given (if it is objectionable, that is).
7. Raise all your claims of “error” in the appropriate post-trial motion.
8. Forget about motions for reconsideration.
9. If you appeal, make sure to appeal from what’s necessary.
10. Attend to a few housekeeping matters, particularly as to what is actually in the court file.
11. Remember that even victors can be parties to appeals.
1 Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1984), quoting Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
2 See, e.g., Minnesota-Iowa Tel. Co. v. Watonwan T.V. Improvement Ass’n, 294 N.W.2d 297 (Minn. 1980).
3 See Thiele v. Stich, 425 N.W.2d 580 (Minn. 1988).
4 See Minn. R. Civ. P. 5.04.
5 Minn. R. Evid. 103(a)(1).
6 Ferguson v. Larson, 260 N.W.2d 467, 470 (Minn. 1977)(referring to the requirement of writing as “absolute”).
7 See, e.g., Colby v. Gibbons, 276 N.W.2d 170 (1979).
8 See Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 524-25 (Minn. 2007).
9 Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 524 (Minn. 2007), quoting Alpha Real Estate Co. of Rochester v. Delta Plan of Minn., 664 N.W.2d 303, 310 (Minn. 2003) [ellipsis in original].
DAVID HERR practices with Maslon Edelman Borman & Brand, LLP, where he heads the firm’s appellate practice. He is coauthor of several volumes in the Minnesota Practice series dealing with trial and appellate matters. He is coeditor of Minnesota CLE’s 8th Circuit Practice Manual, published in its fourth edition in 2007.
HALEY SCHAFFER practices with Maslon Edelman Borman & Brand, LLP, concentrating her practice in commercial litigation and appeals.