How to Prepare for the Appeal at Trial
During trial, the most important thing you can do to prepare for appeal is to be conscious of the record:
- Make your objections as soon as possible. For example, with an appointed expert, you might object at the time of appointment.
- Make an offer of proof when your evidence is excluded.
- Avoid invited error. If you ask a witness to testify, it may be difficult to later object to admissibility.
- State your name when you speak, so the person reading the record knows that it’s you.
- Identify exhibits by name and number. Reading three pages of transcript about exhibits 1, 2, and 3 is extremely hard to follow. A better way to do it would be: “I am now looking at Exhibit #1, the photograph of the red hat.”
- Describe diagrams, scenes, gestures, non-verbal communication, anything that would not be readily apparent from a transcript, e.g., “may the record show that the witness is talking to her counsel/reading her notes.”
- Be respectful to opposing counsel and witnesses. Jokes may or may not work, especially from your client.
- Make your objections as fully as possible, e.g., with the rule number and stated reason for your objection.
- If the trial judge is hostile, consider asking to make the objection or offer of proof in writing.
- If appropriate, make a continuing or standing objection.
- If there have been communications with the court via e-mail, file copies of the e-mails in the court file with proof of service on all parties.
- Make sure that any recording device is on and working, or bring your own court reporter. Be sure that your court reporter is competent.
- Draft your findings as ultimate findings and not as evidentiary findings. By this, I mean that you should make a finding as to an “ultimate fact.” For example, an ultimate finding would be that “the light was green,” whereas an evidentiary finding would be that “the police officer testified that the light was green.” This is important because ultimate findings are easier to defend on appeal.
- If you have lost a motion for summary judgment, make sure that the judge’s order complies with RAP 9.12 (the order must list every document considered).
- Consider moving for reconsideration. If you haven’t briefed a theory that you would like to raise on appeal, you can still raise it on reconsideration. You can also offer new evidence if it seems appropriate to do so. The downside is that the trial court may issue a decision even more adverse to your client.
- Consider moving for relief under CR 60. This is kind of a last resort, but sometimes this is all you have. CR 60 motions require a show cause order. See: CR 60(e)(2).
- Avoid admissions as to the poor merit of your own argument.
- Consider consulting with an appellate attorney before and during the trial.