Keep Your Verdict – Appellate Tips For Trial Lawyers

The post below was provided to Juris Medicus from Caroline Newman Small, Managing Partner at Davis & Santos, P.C. To learn more about Caroline https://dslawpc.com/attorney/caroline-small/

The best trial lawyers know how to successfully present their case to a trial judge and jury. But do they know how to successfully present their case on appeal?

Whether you’re trying to keep your verdict or reverse a ruling that went against you, you should think about your case like an appellate specialist. The following are a few key things appellate specialists know that trial lawyers should know too.

Tip 1: The court of appeals is likely your court of last resort.

In fiscal year 2020, the Supreme Court of Texas granted petitions for review in only 11% of cases and granted petitions for writ of mandamus in only 9% of cases. For better or for worse, you will likely be stuck with the court of appeals’ decision.

Tip 2: Certain types of rulings are more likely to be reversed than others.

In fiscal year 2019, the courts of appeals reversed trial courts 30% of the time in civil cases. Reversal rates for certain types of orders and judgments far exceed the average, while courts rarely reverse certain types of rulings. You should know these statistics and keep them in mind when preparing your appeal.

Tip 3: There are shortcuts to the court of appeals.

If you’ve obtained an adverse, but non-final, ruling in the trial court, there are three immediate avenues to the court of appeals you should know about. Those are: (1) statutory interlocutory appeals, (2) permissive appeals, and (3) petitions for writ of mandamus. Know when each type of appeal is available and the appropriate standard for obtaining each.

Tip 4: Your appellate brief is probably the only way the court of appeals will hear from you.

The courts of appeals do not grant oral argument in most cases. So your brief is critically important to your success on appeal. You should also be aware that the appellate justices and their staff will read your brief on a screen, so change the way you word process to facilitate easy reading.

Tip 5: You probably won’t get rehearing.

The courts of appeals rarely grant rehearing or reconsideration en banc. If you’re seeking rehearing by the panel, you need to show the panel that it overlooked an authority or an item in the record. If you’re seeking reconsideration en banc, remember that en banc reconsideration is disfavored unless (a) it is necessary to secure or maintain uniformity of decisions, or (b) there are extraordinary circumstances.

For more details about these and other tips for winning your next appeal, please register to attend the free CLE webinar on January 19, 2022, sponsored by Juris Medicus, LLC and Lexitas and presented by Caroline Newman Small (CLE accredited).