Making a Record for Appeal

Author: Amy L. Miles

A crucial component of obtaining a judgment in the trial court is the ability to keep favorable judgments when the opposing party seeks an appeal or to overturn unfavorable judgments when the trial court has erred.  While a case is being litigated on the trial level, the focus is most often on just getting to the judgment.  A party and its attorney should be aware, however, that if an appeal must be taken, the appellate courts can consider only the arguments and facts on record in the trial court—and nothing more.  A party cannot go back and “fill in” missing facts or arguments for the appellate court.    Therefore, it is essential to ensure that every argument and fact needed to win your case is presented to the trial court—even when those arguments and facts do not seem to be what will convince the trial court to make its ruling.

The reality is that the same fantastic facts and arguments that may sway a jury—or even a trial judge—may not necessarily be the facts and arguments that will sustain your case through an appeal.  The best way to ensure long-term success in a case is to be familiar with the case law controlling the issues that are disputed in your case.  It is in the case law that a lawyer finds specific interpretations of controlling statutes and contract terms, discussions of specific facts that persuaded the court to rule as it did, and legal reasoning that can point to what must be shown in order to prevail.  Armed with this knowledge, a trial lawyer will be equipped to ask the right questions and get the answers needed to determine the case.  The trial lawyer will also be able to make the specific arguments, based on controlling cases, which will preserve the issues if needed for appellate court consideration.

McCumber Daniels’ appellate practitioners stay abreast of the case law as it is released from the appellate courts.  They are already familiar with controlling case law in many areas, so they are in a position to assist in ensuring that the facts necessary to prove the case and the arguments required to win are being discovered and presented at the trial level.  When novel issues arise, the appellate lawyers have the research experience and skills to quickly and efficiently determine what facts and arguments must be presented to prevail on those issues—or to propose new arguments, if necessary, that are well-grounded in established case law.

This preliminary footwork during the pre-trial and trial stages of a case ensures that the facts and arguments developed are solid and preserved.  It gives you a sound basis on which to make decisions about resolving the case and gives the trial court a solid foundation for its ruling.  Then, if it comes to an appeal, the research is largely done and the facts are well-established, reducing the usual delay and costs that accompany appellate review.  Further, the appellate court has everything in the record it needs to conduct a complete review of the case.  You can depend on our appellate department not only to handle appeals when they arise, but also to assist you and your trial counsel as you progress through the litigation process to accomplish the best results possible in the most efficient and cost-effective manner.

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