Getting Ready to Appeal

I had the opportunity to spend two weeks in early March as appellate counsel at a hotly contested wrongful death trial. Seated next to lead trial counsel, I had a ringside seat where I could observe the jury minute by minute, while also ensuring that the errors - and there were many - were properly preserved for appeal. After nine days of trial, I had accumulated well over a hundred pages of notes, with my preferred assignments of error for appeal already identified. As we waited for the jury to return its verdict, I was already meeting with the client to discuss those assignments of error and what they could expect on appeal.

Explaining the Appeal Process to Clients

As part of that conversation - as is common in such situations - I found myself explaining what an appeal really entails, the basic procedures, and what to expect over the next year. The reality of direct appeals rarely fails to unsettle clients, regardless of how the trial ultimately concludes. Even before the first word of an appellate brief is written, multiple steps - many of them jurisdictional - must be taken to make an appeal a reality.

The Critical First Step - Post-Trial Motions

The first step is also the point at which an appeal can be lost before it begins. When a trial ends with a verdict, most jurisdictions require the losing party to file a motion for a new trial in order to preserve all errors and become eligible to appeal. The rules vary on whether the same errors must be raised in the motion as on appeal, or whether different grounds may be introduced later. Although this requirement may seem archaic, failing to file this motion can be fatal to an appeal, so it absolutely cannot be missed. As appellate counsel, I often depend on trial counsel to handle this part, but I always confirm that the motion is filed and done so in a timely manner under the applicable rules.

Preparing the Record for Appeal

At the same time, it’s imperative to move forward with the practical aspects of the appeal. A complete transcript - covering every moment of the trial, including jury selection, sidebars, and every witness - must be ordered immediately. The Clerk must be consulted to confirm that all documents and physical evidence have been made part of the record. I make it a point to double-check for anything handed up to the judge during trial, as these items have a tendency to go missing. The same goes for jury questions, which also get special attention.

Fixing Record Deficiencies

If something is missing, it's critical to ensure the record is supplemented to address the deficiency. A motion may be required to lodge the missing documents with the court for inclusion in the record. Importantly, this is not an opportunity to introduce new material that should have been offered during trial; it is strictly a remedial step to complete the record for appeal - as tempting as it may be to go further.

Filing the Notice of Appeal

Once the record is in order, it's time to file the notice of appeal. In most jurisdictions, this notice is filed in the trial court and is subject to a strict deadline - usually thirty days from the date the final order disposing of the case is entered. In most courts, this is the final judgment, but in some, the deadline begins from the date of the jury verdict. This deadline is often jurisdictional, meaning failure to file on time can result in forfeiture of the appeal.

The Appeal Bond—A Commonly Missed Step

Another frequently overlooked step is the appeal bond. While most jurisdictions do not require a bond per se, failure to post one can allow the opposing party to execute on the judgment while the appeal is pending. If an insurance company is involved, it may provide the bond, though bonding agencies are also an option. Bonds come with specific requirements that are not always detailed in the rules, so I consult with the trial court Clerk to get the necessary information. I always have a thorough conversation with the client about whether a bond is necessary and, if so, how they wish to obtain it.

Procedural Orders and Timelines

After the notice of appeal is filed, many appellate courts will issue a procedural order noting probable jurisdiction, setting deadlines for the briefs, and sometimes outlining additional procedures. I keep a close watch for this order, as it sets the timeline for my role in the case over the coming months. Again, the Clerk is often a valuable resource for procedural questions not readily answered by the rules. In federal appellate courts, internal operating procedures are available online and are always worth reviewing.

Ensuring a Complete Record

By this point, the record should be nearly complete. If the court reporter is not provided by the court, it is necessary to file the transcripts with the Clerk for inclusion in the record. I always handle this personally - there’s no recovering from an error here if something is omitted. Appellate courts can grant extensions if the Clerk or court reporter hasn’t prepared the record on time, but it’s important to show that the delay isn’t the party’s fault. I make transcript requests as early as possible and maintain proof of those requests in case I need to file them with the court.

Don’t Forget Exhibits and Media

For exhibits that are not documents - such as photographs, video recordings, or physical artifacts - it’s essential to determine how these will be conveyed to the appellate court. I’m especially careful not to overlook these, as they can be crucial to the appeal. The U.S. Supreme Court, for example, has decided appeals based on video evidence included in the record (Scott v. Harris, 550 U.S. 372 (2007)), so it’s critical to ensure these materials are delivered to the appellate court, even if by hand.

Finalizing the Record and Appendix

The final stage before briefing is filing the record with the court. I need a complete, paginated record to prepare the briefs, so this step must be done first. It's also important to know whether the jurisdiction requires the full record, a condensed appendix, or both. If an appendix is used, this typically involves a meet-and-confer with opposing counsel to agree on what to include. As a rule, if the other party requests something be added to the appendix, I include it - no questions asked. I decided long ago that it's better to be reasonable and slightly overinclusive, as disputes at this stage rarely end well. Appellate courts dislike unnecessary motion practice, especially when it stems from disagreements between counsel unrelated to the merits. It’s better to have a slightly bloated appendix than to risk omitting something critical or prompting an adverse order before the first brief is even filed.

The Real Work Begins—Drafting the Brief

Finally, it’s time to draft the opening brief. While the appeal process up to this point - often taking three months or more - may seem exhausting, the real work is just beginning. I always work with the client to establish reasonable expectations, helping them understand that appeals are not quick processes and often include long periods where it may seem like nothing is happening.

A Fortunate Outcome

Back at the trial, just as I was wrapping up my discussion of what the coming months could bring, the jury returned. As luck would have it - and thanks to the skill of our trial defense counsel - my client will not be the appellant in this case, which is always the position I hope to be in.