Building, Preserving and Presenting the Appellate Record Building, - - PowerPoint PPT Presentation
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
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
reprimands
evidence
Daubert
and replies
admitted
veniremen's social media sites
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)
which will later be appealed
be sufficient?
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
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)
rather
through error or oversight
9.200(b)(4)
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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
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
court orders are largely reviewed with a presumption of correctness, the record must reflect that
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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
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.
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At least 3-4 months before trial, determine whether a motion for summary judgment, even for partial summary judgment is appropriate. Often the crystallization of the issues helps get the court ready for trial, even if the case is to be tried to a jury. There may be affirmative defenses which are stale and should no longer be part of the case, or allegations in the operative complaint and replies to affirmative defenses. This will save angst later when preparing the Pretrial Statement and spotting issues that were not made material in discovery which could potentially pop into something more meaningful during trial. A hearing on a motion for partial summary judgment almost by necessity results in educating the trial judge on the underlying case, and gives you a chance to put your best foot forward, first. IMMEDIATELY PRE-TRIAL Consider whether you should be filing motions in limine, especially applicable to exclude evidence which can be damaging and which should be excluded. In the calm, researched and briefed setting of a hearing on such a motion, the court can take the time needed to consider the applicable law, and to weigh the prejudice against the materiality and relevance. This will again help the court become educated on the case, and will be well-received by the court because the legal decisions required during trial have the effect of delaying the presentation of the evidence,
understandably concerned about the according respect for the jury's time spent in service. If a legal issue could have been foreseen before trial, the court will likely expect for you to raise it pre-trial if it will involve more than a minute or two of argument and deals with the exclusion or admission of evidence. Section 90.104(1), of the Florida Evidence Code states that: "if the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for
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appeal." Make sure that you obtain a clear ruling from the trial court, preferably in writing so that the appellate court can observe that the trial court made a definitive ruling on the motion in
If you have succeeded in getting the court to grant the motion in limine, there is still an
Financial Corp. v. Kidder, 950 So. 2d 480 (Fla. 4th DCA 2007). If you are seeking to admit evidence, and the court is entering an in limine order which will effectively exclude that evidence at trial, it is your obligation to preserve the record by making an offer proof. Fla. Stat § 90.104. Florida's Evidence Code requires that the substance of the evidence was made known to the court by offer proof or was apparent from the context within which the questions were asked.
usually made after the judge has sustained an objection to the admissibility of that evidence. Florida Appellate Practice, §8.6, n.1 (Vol. 2 2014)(citing Black's Law Dictionary 1114 (8th ed. 2004)) TRIAL-FIRST DAY On the first day of trial, before opening statements, there are several key moments when you must preserve the record for appeal. Bear in mind that error reviewable on appeal must be challenged in the trial court by a timely made motion or objection made or adopted. See Sunset Harbour Condominium Ass'n v. Robbins, 914 So. 2d 925 (Fla. 2005). Otherwise, the appellate court must find that there was fundamental error giving it the inherent power to reverse, such as jurisdictional issues, which may be raised for the first time on appeal. See Dept. of Revenue ex
considered to be fundamental error. See Hinton v. Gold, 813 So. 2d 1057 (Fla. 4th DCA 2002).
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The objection or motion must also be based on a specific legal ground. See Universal Ins. Co.
Before jury selection begins, ideally have the means to have the voir dire questions that will help you eliminate biased jurors. Make sure to ask all of the follow-up questions to a prospective juror that get to the heart of whether the potential juror is biased against your client. If the appellate error you are seeking to have reviewed later involves a juror's lack of candor during voir dire, the standards used are captured in the De La Rosa case: (1) the complaining party must establish that the information is relevant and material to jury service in the case; (2) the juror concealed the information during questioning; and (3) the failure to disclose the information was not attributable to the complaining party's lack of diligence. De La Rosa v. Zequeira, 659 So. 2d 239, 241(Fla. 1995). As jury selection proceeds, exercise peremptory challenges and, if applicable, consider a race-neutral challenge to any improper exercise of peremptory challenges by opposing counsel on the basis of protected classifications. On the first day of trial, before opening statements, also consider objecting if the court has denied any of your motions in limine or granted any motions in limine which you opposed. But remember that objecting to the ruling is not sufficient to preserve the objection; the objection must be renewed as the offending evidence comes in. At this stage, it may also be helpful to seek clarification from the court about the parameters for opening statements. For example, if the court has not yet ruled on a pending motion in limine, you should seek to prevent opposing counsel from referencing a subject at issue in the pending motion. If opposing counsel makes an improper comment opening statement for the closing argument, you must object to that argument at the time it is made in order to preserve it. See
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Taylor v. Public Health Trust of Dade County, 546 So. 2d 733 (Fla. 3d DCA 1989). This is required so the trial court will be in a position to provide an effective remedy by contemporaneously instructing the jury to disregard the comment, for example. There is a well-recognized exception to the contemporaneous objection rule is applied to improper comments made by counsel. Murphy v. International Robotic Systems, Inc. 766 So. 2d 1010 (Fla. 2000). Using the Murphy exception, the trial court may grant a new trial based on an improper bid and challenged argument by counsel if it satisfies the four prong test: 1) the argument was improper; 2) the comments made are harmful; 3) the harm is incurable; and 4) the damage caused impugn the fairness of the trial such that the public's interest in the system of justice requires a new trial be ordered. This is a good test for all instances where the argument is made that there was fundamental error. AFTER PLAINTIFF RESTS Defense counsel should be ready to move for directed verdict, after the plaintiff rests. Ideally, you should prepare a written motion in advance, and have it ready to file in addition to making the oral record of the motion for directed verdict. A written motion is more likely to carefully preserve all arguments and to guard against any inadvertent waiver, than a hastily prepared oral motion. Given the time pressure of trial, it is usually most effective to draft this written motion before trial even begins and revise it to reflect the evidence as it comes in. Keeping a copy of the prepared motion handy as the evidence comes in can assist you in structuring the argument specifically tailored to the case. Make sure the written motion is filed with the clerk, in addition to being handed to the judge or clerk in the courtroom. Ask for a ruling on the motion on the record. If the court elects to reserve ruling until the end of the defense case, or after all the evidence is in, make a note to ask for the ruling again.
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In those instances where you do not file a written motion for directed verdict, at least
you do not miss one. AFTER DEFENSE RESTS Defense counsel must renew the motion for directed verdict after the defense has rested. This is a critical step that must not be overlooked, even as the trial team is preparing for closing arguments and a charge conference. In essence, the directed verdict motion argues there is insufficient evidence to reach a jury. Insist on renewing the directed verdict motion on the record. Refer back to the original directed verdict motion, renew the arguments made in that prior motion and then layer in additional arguments based on the evidence that defendant presented in its case. While your directed verdict motion may echo the summary judgment motion filed earlier in the case in some respects, make sure the directed verdict motion specifically cites to the trial testimony and exhibits as they have come in during trial. Again, make sure the court rules on the record, ruling
CHARGE CONFERENCE The charge conference is a critical junction for preserving objections for appeal. During the conference, on the record, preserve all arguments as to your proposed instructions and verdict
citations to authority and ensure those pleadings are filed and docketed. Object on the record to any erroneous or prejudicial instructions or verdict form opposing counsel proposes, or the court proposes, and consider making those objections in writing as well. When arguing at the charge conference, be ready with citations to relevant legal authority. Consider preparing a binder of all
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you can readily access any you need during the charge conference and even hand a copy up to the court as needed. BEFORE THE JURY CHARGE Just before the court charges the jury, consider renewing objections to any adverse jury
charge for the first time just before it is given. With others, you may be given a written copy that is a revision of the ones the court provided at the initial charge conference. Make the most of whatever time is available to carefully review the charge and make objections on the record or renew those made at the charge conference. AFTER THE JURY CHARGE Another important preservation moment occurs just after the court gives the jury its charge, but before the jury begins to deliberate. Listen very carefully to the charge the judge gives the jury and ask for a sidebar and object on the record to any erroneous, prejudicial or
conference or before the charge, renew critical objections before the jury deliberates. AFTER AN (ADVERSE) VERDICT In the unfortunate event of an adverse verdict, it is important to keep a clear head, because several preservation steps arise immediately. See Lucas v. Orchid Island Properties, 982 So. 2d 758 (Fla. 4th DCA 2008). First, before the jury is dismissed, review the verdict carefully and in detail and immediately raise any inconsistency in the verdict to the court at
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immediately, when the judge can still send the jury back to fix the error, or it is waived. Second, ask the court to poll the jury, to ensure the verdict meets the requirements of the rule, such as a requirement for unanimity. Finally, while it may be a belt-and-suspenders approach to do so, put on the record that you renew the motion for directed verdict and intend to move for judgment as a matter of law and a new trial. At trial, there are so many moving parts at any given moment that it can be difficult to keep a firm eye on preservation for a later appeal. For new and seasoned trial lawyers alike, we suggest you bring to court a cheat sheet of all of the key moments when you must preserve your objections, to ensure that nothing is waived for appeal. PREPARING AND ASSEMBLING THE CONTENTS OF THE RECORD Creating the ideal appellate record is essential, but not to be overlooked is the compiling
proposed on the compilation of the record on appeal, to include electronic review. See In Re Amendments to Rule 9.200, slip op. SC 15-765 (May 15, 2015). It is fairly safe to assume that this new rule will be adopted. It is attached as an exhibit to these materials with the proviso that it is currently under review, the careful study of it now in the best position to polish your record going forward. The following steps should be undertaken to make sure that your well formulated record is actually in the format it should be once it is transmitted from the trial court clerk appellate
upon are included in the record. Rule 9.200 the primary guide to advise as to what will automatically be included, however, be generous directions to the clerk including all manner of
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particular items is advised. Also, review of the hearing and trial transcripts at the outset is also extremely important. While court reporters are usually very accurate, the absence of a "No" or "Not" can mean important testimony and evidence is completely blurred and obfuscated. Operate with the assumption that you will be filling out your own errata sheet to instruct on items that have been mis-transcribed. Rule 9.200(f)(1) provides that an error or omission in the record may be corrected at any time by stipulation of the parties or by order of the appellate court; the trial court also has the authority to correct errors and omissions if it can be made before the record is transmitted to the appellate court. Id. the burden to initiate measures to correct any such errors is
DCA 1979). Supplementing the record is a possibility if material portions were omitted, not through the error for oversight by a party or its counsel Fla. R. App. P. 9.200(f)(2). This rule is designed to ensure that the failure to bring up portions of the record necessary to determine the existence
items which were not part of the record during the proceedings. Rule 9.200(a)(1) defines the basic record which will be presumptively created by the trial court clerk to include the following: "the original documents, all exhibits that are not physical evidence, any transcripts of proceedings filed in the lower tribunal.." The record presumptively does not include summonses, praecipes, subpoenas, returns, notices of hearing or depositions, and other discovery. Form 9.900(g) contains a sample of Directions to the Clerk. While it may be tempting and conservative to include everything that was filed with the court, there will be more expense in preparing the record.
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Rule 9.200(b)(1) governs the designation of any unfiled transcripts which may be necessary to the appeal. It is the appellant's duty to direct the court reporter to transcribe proceedings, and file those transcripts in the lower tribunal. The party ordering the transcript initially bears the cost of the original, and all copies, subject to taxation of costs is a prevailing party at the end of the appeal pursuant to Rule 9.400. Records for nonfinal appeals must be prepared by the appellant or petitioner, and are not prepared by the court clerk. Instead, the appellant of a nonfinal appeal, or the petitioner seeking a writ, must present the record by appendix. See Fla. R. App. P. 9.220 If no transcript is available, or if the parties can stipulate to the necessary record items, Rule 9.200 (b)(4) allows for reconstructing the record without a transcript. This rule allows a party to prepare a statement of the evidence were proceedings from the best available means, including the appellant's recollection. However, if the other side response by objecting to the accuracy of the recap, the trial court must then reconcile the appellant's statement with any
1020 (Fla. 2d DCA 1993).