Preserving Civil Issues for Appeal in Federal Court: Tools...

Preserving Civil Issues for Appeal in Federal Court: Tools to Optimize Success Avoiding Waiver, Making Motions and Objections, and Presenting Issues on Appeal

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WEDNESDAY, MAY 3, 2012

Presenting a live 90-minute webinar with interactive Q&A

Laurie Webb Daniel, Partner, Holland & Knight, Atlanta

Jerrold J. Ganzfried, Partner, Holland & Knight, Washington, D.C.

Lauren Goldman, Partner, Mayer Brown, New York

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Copyright © 2012 Holland & Knight LLP All Rights Reserved

Preserving Civil Issues for Appeal in Federal Court: Tools to Optimize the Prospects for

Success

Laurie Webb Daniel Holland & Knight LLP

1201 West Peachtree Street, N.W. Atlanta, GA 30309

(404) 817-8533 [email protected]

Begin preparing for the appeal as soon as you get the case

Before anything else, develop your “roadmap”

Analyze all legal theories supporting both sides

List essential elements of each cause of action and affirmative defense

Identify burden of proof as to each issue

Note whether any issue is subject to interlocutory review and the standard of review for the issue

Use your roadmap as a checklist for your pleadings, discovery, and motions

Holland & Knight LLP 6

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Strafford Appellate Webinar

Preservation of Issues Before and During Trial

Lauren Goldman Partner

212.506.2647 [email protected]

Overview

• Issue preservation and legal strategy should begin long before the trial does.

• The function of the “law guy”

• Preservation = – Raising an issue with enough force and definition for the

opposing party to respond and for the trial court to rule on it effectively, and

– Getting a clear ruling from the trial court

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Pretrial Preservation – Anticipating Changes in the Law

• Is there a realistic possibility of a future change in the law that would redound to your client’s benefit? If so, tee up the issue as early as possible.

• Make arguments that acknowledge existing precedent, but

– Advocate for a change in the law and/or

– Keep the issue in reserve

• Tension between trying to move the law and risking waiver by presenting an overly-aggressive argument: Always offer the court a backup option.

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Pretrial Preservation – Rule 12(b)

• Issues that must be raised in a preliminary motion – Rule 12(b)

– Defenses based on lack of personal jurisdiction, improper venue, insufficiency of process, or insufficiency of service of process are gone forever if not asserted in an omnibus Rule 12(b) motion or responsive pleading.

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Pretrial Preservation – Rule 56

• A motion for summary judgment under Rule 56 does not preserve anything for appeal.

– Denial does not constitute a final disposition of any issue in the case; it just means the judge thinks there are genuine questions of material fact.

• To preserve an argument for judgment, you must present it again twice:

– Motion for JMOL under Rule 50(a) at some point before the case goes to the jury (to be safe, renew at the close of the evidence)

– Post-trial motion under Rule 50(b)

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Pretrial Preservation – Motions in Limine

• Motions in limine serve several objectives, even when they are denied:

– Limit the number of objections counsel needs to make in front of the jury

– Smoke out exactly what evidence opposing counsel will try to introduce, and how she will try to argue it to the jury

– Elicit stipulations from opposing counsel that particular evidence will not be offered, and then police the stipulation

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Pretrial Preservation – Motions in Limine

• But a judge will frequently reserve decision until he sees the evidence in context no preservation value. Counsel must object when the evidence is actually introduced.

• Even if the motion is categorically denied, counsel may need to raise the issue again when the evidence is introduced. Know your circuit’s rules.

• The denial of a motion in limine never preserves anything other than the specific arguments raised and ruled upon.

13

Judges Who Make Preservation a Challenge

• Common varieties of obstreperous behavior: – “None of my rulings is ever final”

– “I’ll take that up later” and other refusals to rule

– The grimace, the scowl, the sigh, the eye-roll

– “Let’s discuss it in my chambers” – without the court reporter

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• Defendant’s right to preserve arguments for appeal without alienating the jury

– Right to a meaningful appeal

– Right to unfettered access to the courts

• Potential due process component: If a state chooses to grant the right to an appeal, it must administer that right fairly

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• Preserving error without alienating the jury: – Object outside the presence of the jury whenever possible

• Sidebars can be a double-edged sword

• Ask judge to let you object either before or after opening/closing arguments, not during

– Object in a consistent but low-key, respectful way – the jury will just tune it out

16

Dealing With an Inherently Unconstitutional Trial Plan

• Object to the trial plan at every stage – Pre-trial

– At the close of the evidence

– Post-trial

• Obligation to offer a less-problematic alternative

• Every motion needs a preamble

• Jury instructions and verdict forms

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How Is Each Type Of Objection Preserved?

• Improper admission of evidence – Motion in limine

– Follow up with contemporaneous objections • Rule 46: Objection must state the “grounds” – must say enough for the

trial court to make an informed ruling

– Request a limiting instruction if objection is overruled

– Request a continuing/standing objection – but be careful about relying too heavily on standing objections

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• Improper exclusion of evidence – Offer of proof. The party must identify the “substance of the

evidence” and the basis for admissibility so that opposing counsel can make his argument and the court can rule. Rule 103.

– Circuits are split as to whether an offer of proof is necessary if court has excluded the evidence before trial pursuant to a motion in limine; know your circuit’s rules, but safest course is to make the proffer.

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• Improper argument – Motions in limine

– Contemporaneous objection

– Motion for mistrial; request for a curative instruction

• Insufficiency of the evidence – Motion for judgment

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• Inconsistent verdict – Object before jury is discharged

• Excessive damages; passion and prejudice – Post-trial motion

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Jury Instructions: Preliminary Considerations

• Rule 51(a): A party may file a set of proposed instructions “at the close of the evidence or at an earlier reasonable time that the court directs.”

• Drafting considerations – Pattern instructions vs. independent instructions

– The “correct in all respects” rule • Atomize your requested instructions

• Offer alternative forms of same instruction

– Explanatory motion explaining departure from pattern instructions

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Jury Instructions: Preservation

• Two kinds of instructional error: – The giving of an affirmatively erroneous instruction

– The refusal to give an instruction on a valid, relevant principle of law

• Rule 51(b)(2): Erroneous instructions – Object on the record

– If your objection is that the instruction is too vague, you must offer an alternative instruction that is more specific.

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Jury Instructions: Preservation

• Rule 51(d): Omission of instructions – In diversity cases, entitlement to an instruction is procedural

governed by federal law.

– Under federal law, a party “is entitled to a jury instruction that accurately and fairly sets forth the current status of the law.”

– Refusal of a defendant’s proposed instruction is error if the instruction:

• Is correct,

• Is not otherwise covered, and

• The failure to give the instruction impairs the defense.

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Jury Instructions: Strategy

• Jury instructions provide a hook and a negotiating tool for defense jurors

• Counsel can help defense-minded jurors by explaining the jury instructions in closing argument

– How do the instructions apply to the facts of this case?

– Offer clear, plain-English definitions of key terms

– Emphasize the instructions that help you; if possible, explain away the ones that hurt you

– Demonstratives

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Success

Laurie Webb Daniel Holland & Knight LLP

1201 West Peachtree Street, N.W. Atlanta, GA 30309


Motions for judgment as a matter of law under Rule 50

• Start drafting the motion early, but amend to conform to evidence presented at trial

• File a written motion

• Be as inclusive as possible; use your checklist

• Renew arguments made in prior motions, particularly those made at summary judgment phase

• Rule 50(a) motion must be made before the case is submitted to the jury

• Rationale for Rule 50(a) is to allow other party to cure deficiencies

• To preserve appeal of insufficiency of evidence, arguments must be renewed post-trial under Rule 50(b)


Lessons from Unitherm

• Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006): Rule 50 is a trap for the unwary

• Rule 50 is strictly construed

• Failure to renew motion after trial waives appellate review of denial of Rule 50(a) motion for judgment as a matter of law

• Lack of post-trial motion precludes granting a new trial on insufficiency of evidence grounds


Post Unitherm Practice

• Unitherm holding is limited to challenges to insufficiency of evidence

• Rule 50(b) motions may elaborate on previously raised points

• In some circuits, compliance with Rule 50(a) may be waived with respect to arguments first raised in a Rule 50(b)

• But, if no Rule 50(b) motion is made, court cannot review insufficiency of evidence arguments, not even for plain error




Success

Jerrold J. Ganzfried Holland & Knight LLP

2099 Pennsylvania Avenue, N.W. Washington, DC 20006


Transcript/Record Checklist

Accuracy

Comprehensiveness

Reflects rulings on all applications to admit evidence into the record

Reflects objections that will be required to establish issue preservation (or your opponent’s waiver)

Contains all exhibits and demonstratives that will play a role on appeal and reflects admission (where appropriate)


Transcript/Record Checklist

If stray comments or asides are transcribed, make sure they are indicated as such

If any correction, modification or supplementation of the record is required, create a “to do” list and get the matters resolved promptly

Make sure you have a CLEAN COPY of everything that will be included in the record (Joint Appendix, Excerpt of Record)


Cautions

• Informal procedures

Telephone conferences

Untranscribed conferences

Correspondence (letters, emails, faxes)

Conferences in lieu of motions

• Short cuts

“Standing objections”

Deemed objections


Cautions Cont’d

• Idiosyncratic local customs

Motions

Objections

Jury selection

• Absence of definitive rulings

• Insufficient explanation for rulings


• The Court: Are there any objections to the jury instructions?


• The Court: Are there any objections to the jury instructions?

• Lawyer: No….



• The Court: Your opponent established….

• The Court: Your opponent proved….

• The Court: The case law is against you on…..

• The Court: You conceded….

• The Court: Your opponent established….

• A: Yes

• The Court: Your opponent proved….

• A: Yes

• The Court: The case law is against you on…..

• A: Yes

• The Court: You conceded….

• A: Yes


Trial Transcript Reviewers

• Know what transpired at trial

• Understand the significance of events at trial

• Excellent proofreading skills


Know what transpired at trial

This is not mere proofreading. The reviewer should detect transcription that does not sound right, or does not correspond to the reviewer’s recollection. Encourage frequent inquiries to a trial lawyer who was present in the courtroom and can confirm what actually occurred.


Understand the significance of events at trial

The transcript may not be clear on vital points, such as whether an objection was raised (and ruled on), or whether an exhibit was admitted into evidence, or whether the court reporter picked up a witness’ full answer when interrupted by a multi-person colloquy. Make sure such items are detected.


Possess outstanding proofreading skills

An obvious point that should go without saying. But worth saying nonetheless.


Four Pillars For Constructing an Appellate Issue

• Preservation • Record and Legal Support • Standard of Review • Prejudice


Preservation

Know what is needed in your jurisdiction to preserve an issue for appeal. These requirements can be idiosyncratic and, even within a single jurisdiction, can differ from issue to issue (e.g., evidentiary objections, jury instructions, voir dire, judgment as a matter of law, juror misconduct).


Record and Legal Support

Make sure you know what is needed in your jurisdiction to prevail on any given issue. Preserving the issue is only the first step. Preserving it in a way that optimizes your prospects for success on appeal is the ultimate, practical goal.


Standard of Review

It is important for the trial team to be mindful of the applicable appellate standards of review. For example, if a trial judge exercises discretion in ruling in your favor on a point, try to make sure that the record reflects the discretionary nature of the decision (which will provide a more deferential standard of review than a decision issued as a matter of law).


Prejudice

Many appellate issues turn on the appellant’s ability to establish prejudice flowing from the incorrect ruling. If you find yourself in that position, it is important that you get into the record the predicate points for arguing prejudice. You will be in a stronger position on appeal if you can show that the facts and circumstances creating the prejudice were developed in the record and presented to the trial judge.




Success

Jerrold J. Ganzfried Holland & Knight LLP

2099 Pennsylvania Avenue, N.W. Washington, DC 20006


Preserving Civil Issues for Appeal in Federal Court: Tools...

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