Top Appellate Mistakes that Trial Lawyers Make

Fort Worth, Texas – Peter Smythe © 2019

Fort Worth, Texas – Peter Smythe © 2019

Case statistics show that less than 2% of cases filed every year actually go to trial. So, while trial lawyers might be armed with all the skills necessary to persuade juries, their knowledge of procedural quirks might be a bit rusty when the court's clerk tells them that their case is up for trial. Here is a short list of mistakes that trial lawyers routinely make when they get that call.

No. 1: Ignoring Record Preservation at the Motion Stage

The summary judgment motion usually presents a mountain of a problem for the busy trial lawyer. The motion is often filed towards the latter half of the discovery period and the trial lawyer must draft a response in addition to his other duties of interviewing witnesses, taking depositions, attending mediations, and all of the various things that go in to preparing a case for trial. The appellate court is the last thing on his mind. But it shouldn't be.

If he fails to any objections in his response to the movant's motion or evidence, on appeal he'll only be allowed to argue that the grounds presented for summary judgment are insufficient as a matter of law to support the summary judgment. Roadside Stations v. 7HBF, Ltd., 904 S.W.2d 927, 932 (Tex. App. - Fort Worth 1995, no writ). Consequently, he must not only file a sufficient response, he must objectively comb through the movant's motion for any possible objections. Do the affidavits contain facts that would otherwise be admissible at a conventional trial? Has the movant adequately and accurately referenced materials that are already on file with the court? Is the evidence based on hearsay?

If there is objectionable material in the motion, the trial lawyer should do all he can to preserve his objections on the record and this is where many lawyers fail. His objections to formal deficiencies in the summary judgment proof should be in writing or he risks waiver on appeal (substantive deficiencies can be raised for the first time on appeal). And he should ask the court to make written rulings on the objections. In seven courts of appeal in Texas, if he doesn't secure a written ruling on his objections, they are considered waived. See e.g., Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 206-07 (Tex. App. - Dallas 2005, no pet.).

No. 2: Failing to Focus on Motions in Limine

Generally, trial lawyers don't put much stock in motions in limine. They are usually the last thing drafted before trial and are, more often than not, a cut-and-paste job from a form book or another lawyer's form (from a different form book).

Motions in limine are excellent ways to preserve issues for appeal. Instead of using a boilerplate form with way too many issues, the trial lawyer should focus on the few issues that might turn the tide of the trial. A good motion in limine advises the court of the relevant case law regarding the evidentiary issue, is specific, is in writing, and requires the court to make a decision.

No. 3: Failing to Object (Waiving Error in Appellate Parlance)

Well, that's a pretty good argument, but it wasn't preserved by objection. Therefore it's waived.

The classic trial lawyer error is failing to object, especially when evidence is introduced. Many lawyers do not like to object during trial because they believe that it turns the jury against them. From my own experience, that belief is misguided. Many jurors actually expect lawyers to object (they see it on TV all the time) and they understand that it is all part of the job. If a trial lawyer is squeamish about objections, he should address the issue in voir dire (I have in my own trials).

No. 4: Not Devoting Enough Time to the Jury Instructions

An erroneous jury instruction is one of the best issues to take up on appeal because the review is de novo. Though record preservation issues abound at this stage of the trial, trial lawyers not on top of their game often fail to preserve error in order to get along with the trial court.

The common scenario is that at the pre-trial stage, neither side's jury instructions are complete and they are often completed after the jury has gone home for the day. Arguments about the charge with the judge may not take place until the tail end of the trial and they are often off the record. The judge may make his own changes to the charge which makes it awkward for the complaining party to object. Then, when the parties do make a record of objections, the judge says something like, "It looks like all of the changes we have discussed to the jury instructions that you prepared have been made," and the parties acquiesce. The problem with this scenario is that no error has been preserved; a party can't claim error in the court's failure to give a particular instruction if the party didn't request it.

Instructions should be filed early and the final set of instructions should clearly delineate who submitted the instruction, its disposition (given, refused, modified), and any specific modifications. Objections should be made on the record. And if the trial lawyer is squeamish about offending the court with his objections, he should hire an appellate lawyer to come in and do the objections for him.

No. 5: Inviting Error

A party can't complain of an error that he created or that he acquiesced to. One prime example of invited error is a party receiving the benefits of a judgment that the party plans to appeal. See Newman v. Link, 889 S.W.2d 288 (Tex. 1994).

No. 6: Accepting the Benefits of a Judgment

An appealing party can lose his right to appeal by accepting the benefits of the trial court's judgment. For instance, if a party chooses to pay a judgment instead of posting a supersedeas bond, that party might have given up a challenge to the judgment. See Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex. App. - El Paso 1994, no writ). A party likewise loses his right to appeal if he decides to pocket the judgment while his appeal is pending. Newman v. Link, 889 S.W.2d 288, 289 (Tex. 1994)