Caveat Advocatus: Some Traps for the Unwary in the Colorado Court of Appeals
| Publication year | 2015 |
| Pages | 51 |
| Citation | Vol. 44 No. 1 Pg. 51 |
Columns
Appellate Practice
Caveat Advocatus: Some Traps for the Unwary in the Colorado Court of Appeals
By James P. Eckels, Richard L. Gabriel.
This Appellate Practice column will publish quarterly, usually in the January, April, June, and November issues. Marcy G. Glenn (mglenn@hollandhart.com), Christina F. Gomez (cgomez@hollandhart.com), and Stephen G. Masciocchi (smasciocchi@hollandhart.com) are partners with the law firm of Holland & Hart LLP and are members of the firm's Appellate Practice Group. They serve as column co-editors and alternate writing practical, how-to articles that may be based on recent decisions from the Colorado Supreme Court, the Colorado Court of Appeals, the U.S. Supreme Court, or the Tenth Circuit. Reader feedback is welcome.
About the Authors
James P. Eckels is an attorney at Murr Siler & Accomazzo, P.C. and a former appellate law clerk to Judge Richard Gabriel. His practice focuses on appellate litigation, mortgage lending and servicing litigation, and bankruptcy-jeckels@bmas.com. Richard L. Gabriel is a judge on the Colorado Court of Appeals— richard.gabriel@judicial.state, co. us. The authors thank Chief Judge Alan M. Loeb, Chief Deputy Clerk Polly Brock, and senior staff attorney Jane Bailey of the Colorado Court of Appeals for their assistance with this article.
To paraphrase Mark Twain, a person who carries a cat by the tail learns something he or she can learn no other way.[1] In appellate practice, as in other areas of the law, mistakes not only can scratch and bruise an attorney's ego, but also can undermine the attorney's credibility before the court. Worse still, mistakes can damage the client. This article highlights some common (and potentially costly) mistakes made by practitioners in the Colorado Court of Appeals. It also provides tips on how to avoid these traps for the unwary.
Issue Preservation
Ensuring success on appeal begins long before the notice of appeal is filed. In many cases, the court of appeals will refuse to consider issues on appeal that were not properly preserved in the trial court.[2] Accordingly, issue preservation at trial is critical.
One issue preservation problem that arises with some frequency is the absence of a record of certain trial proceedings, including, particularly, jury instruction and similar off-the-record conferences. Although it is common and appropriate for such trial court proceedings to occur off the record, trial counsel must ensure that any necessary record of such proceedings is made. For example, to preserve instruction-related issues for appeal when a jury instruction conference occurs off the record, counsel must ensure that the record reflects the precise instruction at issue (including any tendered and refused instructions), the argument in favor of such instructions or counsel's objection(s) thereto, and the court's rulings and the grounds therefor. This is particularly important because it is the appellant's duty to provide the appellate court the portions of the record that purportedly disclose the error asserted.[3] When such portions are omitted or unavailable, the court of appeals will presume that they support the trial court's judgment, unless the contrary affirmatively appears.[4]
A somewhat related issue arises from the fact that appellate judges are constrained to read a cold record, bereft of nonverbal responses, body language, tone of voice, and similar information available to those present in the courtroom. Accordingly, if counsel wants the appellate court to know these kinds of facts, he or she needs to make a record of them. This is particularly true when a witness is explaining a demonstrative exhibit or map or illustrating the size of an object. A statement that an object was "this big [gesturing]" is of little use to the appellate court.
Another issue preservation trap arises when a trial court has not ruled on a motion that counsel wants to pursue on appeal. If a litigant fails to make reasonable efforts to obtain an expeditious ruling on a pending motion, the court of appeals may deem the issue abandoned.[5] Likewise, when a trial court denies a pretrial motion but expressly allows the litigant an opportunity to renew the motion at trial, the issues raised in the motion may be deemed waived if the motion is not in fact renewed and the issues are not otherwise preserved at trial.[6] Waiver also may result if the motion is of the type that must be renewed at trial (for example, a motion to sever in a criminal case).[7]
Litigants also should remember that the denial of a motion for summary judgment is generally not appealable.[8] Thus, even if an issue was extensively briefed in a summary judgment motion that was subsequently denied, litigants must raise the issue anew—for example, in a motion for directed verdict or motion for judgment notwithstanding the verdict—to preserve it for appeal.[9]
Finally, litigants should remember to preserve evidentiary objections by clearly identifying "the specific ground for the objection."[10] Failing to do so may result in a waiver of that issue, particularly in civil cases.[11] This rule applies not only when a litigant fails to identify a specific ground for an objection, but also when the litigant objects on one ground in the trial court and then asserts a different ground on appeal.[12] Moreover, a litigant cannot appeal a trial court's exclusion of evidence unless the substance of the evidence was made known to the trial court by an offer or proof or was apparent from the context.[13] Because it is risky to rely on context alone, however, the best practice is to make a detailed offer of proof. Also, if a litigant successfully moves to exclude certain evidence but opposing counsel nevertheless references the evidence at trial, the litigant should request a curative instruction, object to the remarks, or move for a mistrial to avoid the risk that the court of appeals will later conclude that he or she suffered no prejudice from the improper admission of this evidence.[14]
Post-Trial Motions
Post-trial motions provide further traps for the unwary appellate advocate. For example, a litigant's timely motion for a new trial or for judgment notwithstanding the verdict pursuant to CRCP 59 tolls the time for filing a notice of appeal until the entry of an order denying that motion.[15] A Rule 59 motion will be "deemed denied," however, if it is not ruled on within sixty-three days.[16] Thus, the time for filing an appeal in such circumstances begins to run sixty-three days from the filing of the post-trial motion, even if the court rules on the motion after that time.[17] Finally, although potentially similar to a Rule 59 motion in terms of the relief requested, the filing of a motion for relief from judgment pursuant to CRCP 60 will not extend the time for filing a notice of appeal.[18]
The Notice of Appeal
Of all of the mistakes made in appellate practice, errors concerning the notice of appeal are among the most costly because they can potentially deprive the court of appeals of jurisdiction to hear the appeal.[19] Under CAR 4(a) and 4(b), a notice of appeal in most civil and criminal cases must be filed with the appellate court within forty-nine days from the entry of the judgment or order being appealed. On a showing of "excusable neglect," the...
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