Making an Appealing Record on Appeal

When presented with a case s/he has not tried, an appellate lawyer may discover that the record on appeal is in horrendous shape. Even if you are not an appellate lawyer, there is a lot you can do to help your client with a possible appeal. This article discusses a number of things a trial attorney can do to minimize the problems.

You should at least do some basic research as to appellate jurisdiction in your state so that any particular findings that are required are included. For example, in Illinois, if more than one post decree action is pending, the trial court must make a finding that there is no just reason to delay enforcement or appeal (Illinois Supreme Court Rule 304). Without that finding, if multiple parties or multiple claims are involved in an action, an appeal cannot be taken from a final judgment as to one or more but fewer than all of the parties or the claims. Some states have different rules for dissolution of marriage cases and post-decree cases. Many appellate courts are even uncertain as to the applicable rules, so even if you do not fancy yourself an appellate lawyer, this is one area of the law with which you should become familiar.

Offers of Proof

One area in need of a tremendous amount of improvement is the use of offers of proof. Many lawyers do not resort to them, or if they do, they make the offer improperly. The offer of proof is crucial because if you do not proffer to the appellate court the nature of what you are trying to show, the appellate court will not speculate as to what you were talking about. There are generally two sorts of offers; informal offers where you basically tell the court what you wish to introduce, and formal offers that are in the form of questions and answers to a witness. In In re Marriage of Hamilton, (non-published/non citable) 2008 WL 4228380 Cal.App. 6 Dist. 2008, the offer of proof regarding the significance of an unavailable witness' testimony was not specific enough. Similarly, in State v. Townsend, 737 S.W.2d 191 (MO. 1987), it was noted that counsel's offer of proof failed to state the facts in sufficient detail to establish the admissibility of the evidence. Significantly, counsel never mentioned the impeachment purpose of the evidence. It was held that the court need not speculate on the parties' reasons for introducing evidence and it may also assume that the party making the offer of proof has stated it as fully and favorably as he can.

Sometimes an offer is not necessary where the nature of the evidence is apparent. Nevertheless, it is preferable not to take the chance. Also, if the nature of your evidence is such that it will be really difficult to summarize or if you have a witness who is not cooperative or able, consider filing a written offer of proof.

Motions In Limine

In the alternative, you might consider making a motion in limine before or at the start of trial. Although normally motions in limine are used in jury trials to avoid confusing the jury, there is no reason they cannot be used in a bench trial. There may be areas that are really not relevant that you do not want the judge to address, such as criminal conduct, dissipation of assets in a time frame that is not relevant, motions to exclude marital misconduct in those states where it is not relevant, etc. Another example might be a motion to bar expert testimony in the event that improper legal conclusions are contained therein, or that the expert does not possess the requisite knowledge to assist the court, or that the methodology does not conform to professional standards. See, e.g., Presler v. Compson Tennis Club Associates, 815 N.Y.S.2d 367 (2006). In Presler, the trial court granted a motion in limine seeking to preclude plaintiffs from presenting an opinion of their expert with respect to the claim of damages for future loss of household services provided by the plaintiff. This is a case showing use of both the motion in limine and the offer of proof. Once the motion in limine was granted, the plaintiff provided the expert testimony as an offer of proof giving all details. On appeal, the order in limine was reversed.

In M. v. New York City Transit Authority, 781 N.Y.S.2d 865 (2004) a motion in limine was properly granted to exclude evidence that a party was a heroin addict when merely brought to be introduced for the purpose of impeaching his credibility on the grounds of immoral, vicious or criminal acts of moral turpitude. There was a second possible ground for a motion in limine in that the party was also in a methadone treatment program, and there was a New York statute of confidentiality.

Confidentiality could also be used as a basis for a motion in limine with respect to medical and mental health records if appropriate. In Gordon v. Gordon, 20 Misc. 3d 1131 (A), N.Y.Sup. 2008 (unreported), the husband sought an order in limine preventing evidence regarding appreciation of the value of his real estate holdings, claiming that they were the result of passive market conditions and not his active participation in the business during the marriage. This motion in limine was denied because the wife herself was seeking expert fees so that she could obtain evidence of this very issue. See also Pugliese v. Superior Court, 53 Cal.Rptr.3d 681 (2007). In this case, the wife sued the husband in tort for assault, domestic violence and other such actions. The husband filed a motion in limine to exclude evidence of any such conduct alleged to occur more than three years prior to the filing of the complaint based on the California statute of limitations. The trial court granted the motion in limine and the wife had to sue the court for a writ of mandate. The wife's petition was granted because of the continuing tort doctrine, which expanded the statute of limitations. However, in a proper case, this is one way to keep out such evidence.

In In re Marriage of Weiss, 2004 WL 1627187 (non-published/non citable) Cal.App. 2 Dist. 2004, the husband had originally sent discovery out to the wife. She certified that she had complied with all such discovery. Then, on the eve of trial she sought to include certain trial evidence that should have been produced in discovery but was not. The husband's motion in limine to exclude those trial exhibits was granted and affirmed on appeal. The wife had withheld these documents for approximately one year and then revealed them less than one week before trial.

In In re Marriage of Shaban, 105 Cal.Rptr.2d 863 (2001), a document had been executed that the husband claimed was a written prenuptial agreement in Egypt. The husband presented an expert who was not allowed to testify because the trial judge concluded the document was a marriage “certificate” and not a written prenuptial agreement. The appellate court agreed and affirmed the exclusion of the expert testimony. The court specifically noted that, although the husband complained of the $25,000 expense of flying in his expert from London, a motion in limine could have been made well prior to trial, and the husband could have spared himself the expense of flying the expert in. It also noted that the making of the motion itself would possibly be expensive; but, if the testimony been allowed, then the trial may have had to be continued to allow the wife to call her own expert. The suggestion, of course, is that a “reverse” motion in limine be filed, not to obtain a ruling
of inadmissibility, but rather admissibility.

These motions must be used carefully because if the trial court bars something that really should not be barred, your case may be ripe for an appeal as in Presler.

Necessary Documents

Be familiar with the law in your state regarding documents needed for the record on appeal such as transcripts. Some attorneys do not even have a court reporter present when they do not believe there is going to be an appeal. Although in many states, a bystander's transcript or some other stipulation may suffice, those substitutes for a record can be very problematic. If you think there is any chance that the case will be appealed, insist on having a court reporter present.

Procedural Issues and Courtroom Strategy

It also makes sense to be familiar with the appropriate standard of review in your case. Generally speaking, questions of law are viewed by the appellate court de novo. Factual determinations are more within the court's discretion. Also, be familiar with the rules in your state regarding motion practice such as summary judgment. Many states have requirements regarding affidavits. Make sure everything is properly filed, including deposition transcripts when required in summary judgment practice.

Similarly, do not be afraid to ask for sidebars. These are particularly useful when your opponent's client is on the stand and you are concerned about an area of testimony, but you do not want it said in front of the witness, who will use that as coaching. However, you should still request that any sidebars be on the record because as far as the appellate court is concerned, if it is not on the record, it did not happen.

Do not forget about asking the court to take judicial notice of documents containing readily verifiable facts. Public records, such as deeds, are appropriate items for judicial notice. Some states even allow judicial notice to be taken by the court of review when it was not sought in the trial court. Muller v. Zollar, 267 Ill.App.3d 339, 642 N.E.2d 860, 862 (Ill.App.Ct. 1994). However, you should not count on that.

Conclusion

These days there is a plethora of online information of which a court can take judicial notice. Recently, the court took judicial notice of government Web sites regarding the prime rates, six-month CD rates and other financial information from the 1980s, which all of a sudden turned out to be relevant in a case I was trying. See Dulaney v. US, 472 F.Supp.2d 1085 (SD Ill. 2006) (court may judicially notice public records and government documents, including those available from reliable sources on the Internet).

Obviously, any sort of objection should be made on the record. Generally, if a motion in limine is denied, you must still object to the evidence when it is introduced at trial, or you will have waived the objection.

Moreover, under the doctrine of invited error, you will not be able to complain about something that you had the court do ' or not do ' when you caused that action in the first place. In re Marriage of Saheb and Khazal, 337 Ill.App.3d 315, 880 N.E.2d 537 (Ill.App.Ct. 2007). Another point ' which may not be necessary to state ' is that generally an agreed order is not subject to appeal. McGath v. Price, 342 Ill.App.3d 19, 793 N.E.2d 801 (Ill.App. 2003). Sometimes you may start a contested matter that ultimately settles. Make sure the record clearly indicates that the order is now agreed. It can be very useful to place an express waiver of the right to appeal in such a final order so the issue does not later appear.

There are a number of areas where the trial lawyer can make the appellate lawyer's life easier.

Paul L. Feinstein, a Chicago sole practitioner and a member of this newsletter's Board of Editors, concentrates his practice in family law, with emphasis on divorce litigation, custody and visitation, and appeals.

When presented with a case s/he has not tried, an appellate lawyer may discover that the record on appeal is in horrendous shape. Even if you are not an appellate lawyer, there is a lot you can do to help your client with a possible appeal. This article discusses a number of things a trial attorney can do to minimize the problems.

You should at least do some basic research as to appellate jurisdiction in your state so that any particular findings that are required are included. For example, in Illinois, if more than one post decree action is pending, the trial court must make a finding that there is no just reason to delay enforcement or appeal (Illinois Supreme Court Rule 304). Without that finding, if multiple parties or multiple claims are involved in an action, an appeal cannot be taken from a final judgment as to one or more but fewer than all of the parties or the claims. Some states have different rules for dissolution of marriage cases and post-decree cases. Many appellate courts are even uncertain as to the applicable rules, so even if you do not fancy yourself an appellate lawyer, this is one area of the law with which you should become familiar.

Offers of Proof

One area in need of a tremendous amount of improvement is the use of offers of proof. Many lawyers do not resort to them, or if they do, they make the offer improperly. The offer of proof is crucial because if you do not proffer to the appellate court the nature of what you are trying to show, the appellate court will not speculate as to what you were talking about. There are generally two sorts of offers; informal offers where you basically tell the court what you wish to introduce, and formal offers that are in the form of questions and answers to a witness. In In re Marriage of Hamilton, (non-published/non citable) 2008 WL 4228380 Cal.App. 6 Dist. 2008, the offer of proof regarding the significance of an unavailable witness' testimony was not specific enough. Similarly, in State v. Townsend , 737 S.W.2d 191 (MO. 1987), it was noted that counsel's offer of proof failed to state the facts in sufficient detail to establish the admissibility of the evidence. Significantly, counsel never mentioned the impeachment purpose of the evidence. It was held that the court need not speculate on the parties' reasons for introducing evidence and it may also assume that the party making the offer of proof has stated it as fully and favorably as he can.

Sometimes an offer is not necessary where the nature of the evidence is apparent. Nevertheless, it is preferable not to take the chance. Also, if the nature of your evidence is such that it will be really difficult to summarize or if you have a witness who is not cooperative or able, consider filing a written offer of proof.

Motions In Limine

In the alternative, you might consider making a motion in limine before or at the start of trial. Although normally motions in limine are used in jury trials to avoid confusing the jury, there is no reason they cannot be used in a bench trial. There may be areas that are really not relevant that you do not want the judge to address, such as criminal conduct, dissipation of assets in a time frame that is not relevant, motions to exclude marital misconduct in those states where it is not relevant, etc. Another example might be a motion to bar expert testimony in the event that improper legal conclusions are contained therein, or that the expert does not possess the requisite knowledge to assist the court, or that the methodology does not conform to professional standards. See, e.g., Presler v. Compson Tennis Club Associates , 815 N.Y.S.2d 367 (2006). In Presler, the trial court granted a motion in limine seeking to preclude plaintiffs from presenting an opinion of their expert with respect to the claim of damages for future loss of household services provided by the plaintiff. This is a case showing use of both the motion in limine and the offer of proof. Once the motion in limine was granted, the plaintiff provided the expert testimony as an offer of proof giving all details. On appeal, the order in limine was reversed.

In M. v. New York City Transit Authority , 781 N.Y.S.2d 865 (2004) a motion in limine was properly granted to exclude evidence that a party was a heroin addict when merely brought to be introduced for the purpose of impeaching his credibility on the grounds of immoral, vicious or criminal acts of moral turpitude. There was a second possible ground for a motion in limine in that the party was also in a methadone treatment program, and there was a New York statute of confidentiality.

Confidentiality could also be used as a basis for a motion in limine with respect to medical and mental health records if appropriate. In Gordon v. Gordon , 20 Misc. 3d 1131 (A), N.Y.Sup. 2008 (unreported), the husband sought an order in limine preventing evidence regarding appreciation of the value of his real estate holdings, claiming that they were the result of passive market conditions and not his active participation in the business during the marriage. This motion in limine was denied because the wife herself was seeking expert fees so that she could obtain evidence of this very issue. See also Pugliese v. Superior Court , 53 Cal.Rptr.3d 681 (2007). In this case, the wife sued the husband in tort for assault, domestic violence and other such actions. The husband filed a motion in limine to exclude evidence of any such conduct alleged to occur more than three years prior to the filing of the complaint based on the California statute of limitations. The trial court granted the motion in limine and the wife had to sue the court for a writ of mandate. The wife's petition was granted because of the continuing tort doctrine, which expanded the statute of limitations. However, in a proper case, this is one way to keep out such evidence.

In In re Marriage of Weiss, 2004 WL 1627187 (non-published/non citable) Cal.App. 2 Dist. 2004, the husband had originally sent discovery out to the wife. She certified that she had complied with all such discovery. Then, on the eve of trial she sought to include certain trial evidence that should have been produced in discovery but was not. The husband's motion in limine to exclude those trial exhibits was granted and affirmed on appeal. The wife had withheld these documents for approximately one year and then revealed them less than one week before trial.

In In re Marriage of Shaban, 105 Cal.Rptr.2d 863 (2001), a document had been executed that the husband claimed was a written prenuptial agreement in Egypt. The husband presented an expert who was not allowed to testify because the trial judge concluded the document was a marriage “certificate” and not a written prenuptial agreement. The appellate court agreed and affirmed the exclusion of the expert testimony. The court specifically noted that, although the husband complained of the $25,000 expense of flying in his expert from London, a motion in limine could have been made well prior to trial, and the husband could have spared himself the expense of flying the expert in. It also noted that the making of the motion itself would possibly be expensive; but, if the testimony been allowed, then the trial may have had to be continued to allow the wife to call her own expert. The suggestion, of course, is that a “reverse” motion in limine be filed, not to obtain a ruling
of inadmissibility, but rather admissibility.

These motions must be used carefully because if the trial court bars something that really should not be barred, your case may be ripe for an appeal as in Presler.

Necessary Documents

Be familiar with the law in your state regarding documents needed for the record on appeal such as transcripts. Some attorneys do not even have a court reporter present when they do not believe there is going to be an appeal. Although in many states, a bystander's transcript or some other stipulation may suffice, those substitutes for a record can be very problematic. If you think there is any chance that the case will be appealed, insist on having a court reporter present.

Procedural Issues and Courtroom Strategy

It also makes sense to be familiar with the appropriate standard of review in your case. Generally speaking, questions of law are viewed by the appellate court de novo. Factual determinations are more within the court's discretion. Also, be familiar with the rules in your state regarding motion practice such as summary judgment. Many states have requirements regarding affidavits. Make sure everything is properly filed, including deposition transcripts when required in summary judgment practice.

Similarly, do not be afraid to ask for sidebars. These are particularly useful when your opponent's client is on the stand and you are concerned about an area of testimony, but you do not want it said in front of the witness, who will use that as coaching. However, you should still request that any sidebars be on the record because as far as the appellate court is concerned, if it is not on the record, it did not happen.

Do not forget about asking the court to take judicial notice of documents containing readily verifiable facts. Public records, such as deeds, are appropriate items for judicial notice. Some states even allow judicial notice to be taken by the court of review when it was not sought in the trial court. Muller v. Zollar , 267 Ill.App.3d 339, 642 N.E.2d 860, 862 (Ill.App.Ct. 1994). However, you should not count on that.

Conclusion

These days there is a plethora of online information of which a court can take judicial notice. Recently, the court took judicial notice of government Web sites regarding the prime rates, six-month CD rates and other financial information from the 1980s, which all of a sudden turned out to be relevant in a case I was trying. See Dulaney v. US , 472 F.Supp.2d 1085 (SD Ill. 2006) (court may judicially notice public records and government documents, including those available from reliable sources on the Internet).

Obviously, any sort of objection should be made on the record. Generally, if a motion in limine is denied, you must still object to the evidence when it is introduced at trial, or you will have waived the objection.

Moreover, under the doctrine of invited error, you will not be able to complain about something that you had the court do ' or not do ' when you caused that action in the first place. In re Marriage of Saheb and Khazal, 337 Ill.App.3d 315, 880 N.E.2d 537 (Ill.App.Ct. 2007). Another point ' which may not be necessary to state ' is that generally an agreed order is not subject to appeal. McGath v. Price , 342 Ill.App.3d 19, 793 N.E.2d 801 (Ill.App. 2003). Sometimes you may start a contested matter that ultimately settles. Make sure the record clearly indicates that the order is now agreed. It can be very useful to place an express waiver of the right to appeal in such a final order so the issue does not later appear.

There are a number of areas where the trial lawyer can make the appellate lawyer's life easier.

Paul L. Feinstein, a Chicago sole practitioner and a member of this newsletter's Board of Editors, concentrates his practice in family law, with emphasis on divorce litigation, custody and visitation, and appeals.