TIPS FOR TRIAL LAWYERS: A Technique to Pinpoint the Appellate Issue: by Michael Winer, Esq. Last month, you learned how important precisely defining the appellate issue is to your chances of victory. Truly, it can mean the difference between winning and losing. But how do you do it – just by reading the final judgment and making one up? Chances are that this technique just won’t work. Consequently, especially for those trial lawyers that only rarely practice appellate law, I would like to share with you the technique that I have generally used over the past 28 years. When you really analyze it, an appellate issue is nothing more than the sum of ideas that come from experience, training, intuition, creativity, research and the factual and legal data surrounding a case. It stands to reason that for lawyers to maximize their skills pinpointing one, that it would be helpful to have a logical and meaningful system to deliver and store the information that will eventually form the issue or issues. Clearly, not all techniques to input this data apply in every case. Nor can one expect all lawyers to always use one over another. However, to provide some direction in analyzing appellate issues, consider the following procedure to frame the appellate issue.

1. First, read all pleadings (the Complaint, Answer, Counter-Claim, Cross-Claim, and Replies), Answers to Interrogatories and Responses to Requests to Admit. Read them thoroughly and take notes. Pay attention to the following: (i) the causes of action, (ii) the defenses and affirmative defenses, (iii) admissions either in the pleadings or in the replies to discovery requests, (iv) trial issues, and (v) the exact damages requested or the relief sought. By taking notes on the pleadings, you will begin to build a written history of the case that will greatly help in drafting the Statements of the Case and Facts. If certain words in the pleadings are important, copy them in your notes.
2. The judgment is the next document to read. There are several reasons for this. In an appeal, a party asks the court to review the lower court’s judgment. The appellate court’s primary duty then (in civil cases) is to resolve whether the lower court “got it right” or “got it wrong”. Furthermore, the appellate court wants to know the exact point in the judgment that is being attacked and why (or why not) the trial court “went off the rails” there. Consequently, while reviewing the judgment, underline all findings of fact and law. During this review, also note: (i) how the trial court dealt with the issues presented in the pleadings, (ii) if it left out any relevant facts or legal issues, (iii) the logic (or illogic) used therein, (iv) the legal principles used to resolve the case, and (v) the exact language under attack in the appeal.
3. Next, review all substantive legal authorities relied upon by the parties below or cited in the judgment. This will provide yourself with a legal framework to consider the remainder of the information that you will store in your memory.
4. Then review appellate law to put the case in an appellate perspective. For example, in many jurisdictions, lawyers must identify the scope of review in their briefs. Consequently, you might have to refresh your recollection about the different types of review (and their tests) that may be available – for example, the “clearly erroneous” or “abuse of discretion” test.
5. The next step involves preparation of a digest of the case’s facts. Essentially, the digest is a “beefed up” time line that records, in chronological order or by topic, all facts that may tangentially be relevant to the appeal. References to the record should be noted with each entry. This digest can easily be consulted while chiseling out the issue, drafting the statement of facts, and during oral argument.

The usual place for starting the digest is the admitted facts found in the pleadings and discovery replies. Then, refer to the testimony and exhibits. The digest is commonly believed to be the best way to accurately see the relationship between the facts, the ‘flow” of what actually happened, and the case’s “big picture”. This process proves beneficial in at least three ways:

1. It forces yourself to “boil down” in your mind the case’s facts. This happens by just reading the documents and testimony closely enough to summarize them.
2. The digest also serves as a vehicle to share an understanding of the case’s factual history. It allows all involved with the case to quickly get on the same page (literally) as the brief writer. This includes the client, the attorney that will argue the case on appeal (assuming that the brief writer is not going to argue the case) and/or the trial attorney (assuming that the trial attorney is not handling the appeal). Their views are invaluable to the brief writer. Of course, the more clearly and objectively they understand the case, the more valuable their contributions become. The digest helps them accomplish this in a minimum amount of time.
3. The digest further allows one to draw reasonable inferences by tying two or more facts together. Often, these inferences would be difficult, if not impossible, to draw without seeing the facts’ relationship to each other according to the date they occurred.
6. After the digest is completed, you probably will have to conduct further substantive research in the areas that seem likely candidates for the appellate issue or issues. This research should also include issues that will likely be raised by the opposition. At this point, you should be prepared to begin drafting the appellate issue or issues. The reason for not doing so earlier in the process is that your subconscious must first “download” sufficient information in a meaningful manner so that your thought processes are not “short-changed.” Any attempt to do so before then is simply a waste of your time and your client’s money. In our “issue based” appellate scheme, everything in the brief must relate to the issue. If it is not, it should be left out. Given this fact, one can only wonder how litigators can know what to include in a brief without first having a good handle on the appellate issue. Logically then, writing a brief without first identifying the issue is like a “bull in a China shop”. In both cases, neither the lawyer nor the bull have any idea at what they are charging at. Please do not let this happen to you.