written by guest blogger John Campbell
One of the ironies of appellate courts—especially intermediate appellate courts—is that although they sometimes are viewed as a place where policy considerations count, justice is dispensed, and the grind of trial courts is left behind, the truth is that most appellate courts are highly technical, often highly restrictive environments. Intermediate court judges have confided in me that they often don’t feel much like they administer justice. Instead, they apply precedent and follow rules. This is clear to anyone who has had to put briefs in 13-point font, or measure margins, or stop talking because a red light went off. But nowhere is the potentially case-fatal nature of appellate technicality clearer than in the requirement that issues be preserved for appeal.
Federal and state courts uniformly require that an issue must be preserved if it is to be reviewed. The justifications for this are 1) the trial court should be given a fair opportunity to rule on the question first, and 2) appellate courts need a detailed record in order to review whether error occurred.
Preservation can make or break a case. So, included below are a few concrete tips that just might save you some sleepless nights. I’ve focused on the trial court since, in my experience, some of the worst mistakes happen there.
Employ these four tips at the trial court, then carefully follow the appellate rules about preservation, and your client will thank you for it.
Before becoming a professor at Denver University, about 50 percent of John Campbell’s practice was appellate work. He has practiced around the country, including the state supreme courts of Colorado and Missouri and the United States Supreme Court. He has won some statewide awards for his work (one of the most influential appellate attorneys in Missouri in 2011 and 2013), and continues to work on appellate cases and argue them regularly. He now also presents on appellate writing and argument. His focus is on creative approaches to appellate law, both in brief writing and in argument.
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