How to Lose Your Appeal During Trial

• Publication year: 2017
• Author: By Jeremy Rosen and Ryan Chapman

How To Lose Your Appeal During Trial

By Jeremy Rosen and Ryan Chapman

Taking a case to trial can be a long process that demands hard work and careful attention from counsel. While the goal of every trial is victory, the verdict is not the end of the line. The appellate courts may have the final word.

The preparation for an appeal should not begin when the verdict is announced. Indeed,

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the successful trial lawyer will consider the impact of a potential appeal throughout the trial. Examples of the consequences of failing to appreciate the need to plan for an appeal during trial are littered throughout the reported decisions. This article identifies common mistakes that caused a losing party during trial to also lose on appeal. Learning from these mistakes will improve effectiveness at trial and may help avoid some potentially awkward conversations with unhappy clients.

— Making Motions in Limine Work —

Motions in limine serve the important purpose of case management by identifying complex evidentiary issues at the outset of trial. (See City of Livermore v. Baca (2012) 205 Cal.App.4th 1460, 1465.) By identifying these issues early, counsel can avoid exposing the jury to prejudicial evidence and preserve those sticking points for appeal. But by failing to file a motion, counsel might often find themselves on the losing end of an argument. In Bermundez v. Ciolek (2015) 237 Cal.App.4th 1311, a pedestrian was injured when defendant and another motorist collided in an intersection. (Id. at p. 1315.) The jury found that defendant's negligence was the only substantial factor in causing plaintiff's injuries, and awarded him $3.7 million in damages, including $460,000 for medical damages. (Id. at p. 1327.)

On appeal defendant argued that there was not substantial evidence to support the medical damages award. (Bermundez, supra, 237 Cal.App.4th at pp. 1338-1339.) The court noted that defendant's argument essentially amounted to a claim that plaintiff's experts failed to provide an adequate foundation for their valuations of his injuries and that a new trial on damages was needed to correct the error. (Id. at pp. 1339-1340.) The Court of Appeal rejected this argument because defendant failed to object or file a motion in limine in the trial court challenging the evidence that could be used by the expert in formulating a damages opinion and the court refused to speculate on how the trial court would have ruled on any hypothetical motion. (Id. at p. 1340.) This case serves as a clear message to counsel to file motions in limine challenging the use of improper evidence in order to preserve such a challenge if needed on appeal after an adverse judgment.

— Objection! —

A motion in limine, while important to file, may not be sufficient to preserve issues for appeal. Further objections to challenged evidence may be required during trial. In Christ v. Schwartz (2016) 2 Cal.App.5th 440, 442, wife sued the driver who crashed into her car for personal injuries and her husband sued for loss of consortium. Husband and wife moved in limine to exclude evidence of the husband's affair, which had occurred 14 years prior to the accident. (Id. at pp. 450-451.) The court tentatively denied the motion and the affair was discussed at length during the trial. (Id. at pp. 451-452.) Plaintiffs challenged this evidence on appeal after judgment, but the Court of Appeal rejected their argument because...