Building, Preserving and Presenting the Appellate Record
Building, Preserving and Presenting the Appellate Record 1) Before Trial 2) Immediately Pretrial 3) First Day of Trial 4) After Plaintiff Rests 5) After Defendant Rests 6) Charge Conference 7) After an Adverse Verdict 8) Assembling the Appellate Record
Before Trial Identify witnesses-schedule preservation depositions • Study witnesses' history- social media, prior depositions, work history and • reprimands Assemble key documents-consider evidentiary objections to admission of • evidence Revisit original trial plan monthly • Calendar trial order deadlines with double tickles • Impact of Daubert - reevaluate experts who have not yet been qualified under • Daubert Prepare dispositive and partially dispositive motions • Review pleadings quarterly for amendments, especially to affirmative defenses • and replies Draft a preliminary pretrial statement with the issues to be litigated and issues • admitted
Immediately Pretrial • Identify evidentiary and privilege items for motions in limine • Acquire affirmative granting or denying motions in limine • Outline the witnesses and exhibits to which orders in limine will apply and renew objections as a nonprevailing party, and guard against evidence coming in in violation of the order
First Day of Trial Have assistance available to preliminarily search the • veniremen's social media sites Appellate standard for reversal and re-manned for jurors lack • of candor: 1) complaining party must establish information relevant, material to jury service 2) juror concealed the information during questioning (ask the penetrating questions) 3) failure to disclose the information was not attributable to your lack of due diligence De La Rosa v. Zequeira , 659 So. 2d 239 (F;a 1995)
Opening statements -object if orders in limine are violated Contemporaneous objection required for improper comments • which will later be appealed Consider remedies if objection is granted-will an instruction • be sufficient? Contemporaneous objection rule requires: • 1) argument was improper 2) comments made are harmful 3) harm is incurable 4) damage caused impugns the fairness of the trial such that the public's interest in the system of justice requires a new trial
After Plaintiff Rests • Motion for directed verdict or involuntary dismissal is prepared and briefed-if this is granted it should form the basis for your appellate brief • File the written motion with the clerk • Get a definitive ruling on the motion from the court • If the court reserves ruling, raise again at the end of the defendants case, and after all the evidence is in
After Defense Rests • Renew motions for directed verdict or involuntary dismissal (because there is insufficient evidence to reach a jury or a legally cognizable claim has not been brought)
Charge Conference/ Jury Charge • File all detailed proposed instructions and verdict form • Prepare a binder of all of the legal authority for and against the proposed instructions • Contemporaneously object to any errors in the courts charge of the jury
After an Adverse Verdict • Immediately raise any inconsistency in the verdict • Poll the jury • Renew motions for directed verdict
Preparing and Assembling The Contents of the Appellate Record Anticipate changes to the appellate record assembly in the • proposed Appellate Rule amendments from the Florida Supreme Court In re Amendments to Rule 9.200, slip op. SC 15 – 765 (Fla. May 15, 2015) Review the existing index-file any hearing transcripts needed • Order and arrange for payment of the trial transcript • Read the transcripts thoroughly when received and consider filing a • rather Supplementing the record is possible if portions were omitted not • through error or oversight Reconstruction of a record not otherwise available pursuant to Rule • 9.200(b)(4)
FACA SEMINAR Kim Ashby is a partner at Akerman, LLP. She has been Board Certified in Appellate Practice by The Florida Bar since 1994. She received the Justice Harry Anstead Award as Board certified Lawyer of the Year in 2013. Kim is a 1980 graduate of the University of Florida College of Law, and began her career as a Judicial Law Clerk to Judge Monterey Campbell of the Florida Second District Court of Appeal. She is also Board Certified in Construction Law. Kim is currently a member of the Executive Council of the Trial Lawyers Section of The Florida Bar. She received a Lifetime Achievement Award from the Construction Law Section in 2011. Topic: LOCAL GOVERNMENT SUCCESS AT TRIAL AND ON APPEAL: BUILDING, PRESERVING AND PRESENTING THE RECORD These materials will cover the items you should consider in building a solid record at the lower tribunal, preserving the objections and proffers of evidence, and presenting that record to the appellate court or tribunal. The goal has been to make these materials a practical guide to enhance your checklists and case management to insure that you will prevail at the next level, regardless of whether you are the prevailing party, or the party seeking a reversal. Considerations are divided by time frame into the following sectors: 1) Before trial; 2) Immediately Pre-Trial; 3) First Day of Trial; 4) After Plaintiff Rests; 5) After Defendant Rests; 6) Charge Conference; 7) After an Adverse Verdict; and 8) Assembling the Appellate Record. BEFORE TRIAL Preservation of the record begins at the very outset of the case. A well-crafted case, prosecuting or defending, usually comes only with careful planning and study, solid examination of potential witnesses and key documents, and development of the key legal issues. Because trial court orders are largely reviewed with a presumption of correctness, the record must reflect that {30550784;1}
they trial court's ruling contains prejudicial error. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1980). Two initial concerns: will my witnesses be available and ready? Will I get all of my evidence in? There is no trading off the actual first person contact with the key witnesses. Often, witnesses have failed memories and others who recount what they know are amazed when the witness folds up once a suit is filed. Even seasoned witnesses benefit from being shown what testimony can look like when typed into a transcript. To secure the best transcript of the desired testimony, it is recommended that the witnesses have at least once rehearsal of being asked key questions, and giving the responses, to minimize the use of terms which are unclear, too many pronouns used, etc. Once a month revisit your pleadings to make sure that all of the allegations, defenses and replies are complete and accurate. Law suits have a tendency to shift during the progress of the suit, especially when you are having success against the other side. As the opposition attempts to recraft their case and theory, you will need to continually do the same. Once the court issues a trial order, prepare a rough draft of the Pretrial Statement outlining the issues admitted, and the issues to be tried, to double check that you are on track with your evidence. Regarding experts, now that Daubert is a reality, reassure that your chosen experts have not been relying on ipse dixit analysis, or will otherwise be challengeable under the new standard. See Fla. Stat. 90. 702 A reliable way to test this is to use your template for cross- examination of the opposition's expert in a prep session with your own expert. If there are written expert reports, you will want to eliminate any potential challenges before the reports are finalized. {30550784;1} 2
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