too bad, because I guarantee you are not going to preserve an issue on appeal if you failed to see it in the first place,” says Newsom. Many of us are happy to act as a sounding board or have a quick chat with you free of charge. If you’re aware in advance that a particular case is likely to be appealed, then you may want to seek a more formal arrangement so you can consult an appellate attorney on various issues throughout the life of the case. AT TRIAL: What Happens in Chambers Stays in Chambers. “Seems obvious, but if you go into chambers to discuss the case with the judge, that won’t be in the record on appeal,” Newsom warns. “If something happens in chambers that would later be relevant to the appeal, you may find that you lose the entire appeal because the record is not sufficient to prove your point. I would be hesitant to go into chambers on certain cases and with certain judges.” This author would add it can be helpful while in chambers to agree the parties go back on the record and that the attorneys (or in some cases, the judge) recite any details that might be important to preserve on the record. Make an Offer of Proof. “Many beginner attorneys (and a fair number of intermediate attorneys) do not understand what an offer of proof is,” Newsom says. “If your evidence is excluded and you think it shouldn’t have been, then you need to make an offer of proof, either by explaining what the evidence would have shown or by offering the excluded evidence itself. It’s understandable that lawyers are afraid to annoy the trial judge, but that’s not a good reason to fail to preserve an evidentiary argument for appeal.” Avoid a Ruling that is Too Good to be True. Sometimes, a ruling will come out of left field. What happens when the court gets it wrong in your favor? As trial attorneys, we often are going for the best result available. But sometimes you’re better off steering the court to the right answer rather than taking a bigger “win” that won’t withstand appeal. AFTER TRIAL: Sometimes, a Post-Trial Filing Can Save the Day. “At a minimum, you need to consult with an appellate attorney once the unfavorable ruling is released. There are many, many things that can be done to triage the situation and bolster your appeal between the time of the ruling and the entry of the judgment. Nothing is final, including the record, until the judgment is entered. If you look at the Craven case from last year, that decision hinged on a declaration filed post-trial which ended up saving the day. I am not saying that will work in all or even most cases, but there is often something that can be done. This is also true when you are the victor. That is, if the trial judge made an appealable error in your favor, you may want to patch it up before entry. A technical/procedural error can often be a huge leverage piece on appeal.” This appellate attorney has seen many an anemic record strengthened by a Motion for Reconsideration/Motion for New Trial. The Form of Judgment. While not always a question of preservation, the attorney who has an eye to an appeal should take particular care with the form of judgment. Even where you can argue the error was preserved on the record, your appeal will be nicely teed up if it is set forth in the judgment. If the trial court made findings of fact or conclusions of law that will form the basis of your appeal, make sure those are incorporated into your form of judgment. I often order the For the Record (FTR) recording and recite the problematic findings or conclusions practically verbatim to avoid wasting time fighting with opposing counsel at a form of judgment hearing. Even if you preserved the error on the record, this step will present the issue cleanly and your appellate attorney will thank you. So, when should you contact an appellate attorney? As Newsom suggests, it might make sense to have someone you can speak with early on, in some cases, even before trial. Absent that, however, it makes sense to contact an appellate attorney when it becomes clear things aren’t going your way and before a form of judgment is drafted. In any case, you must file a notice of appeal within 30 days of entry of judgment. Under the Oregon Rules of Appellate Procedure, 30 days means 30 days — the mailbox rule does not apply. Once you’ve filed and served your notice of appeal, the transcript will be ordered and prepared, and then you’ll have some conversations with the appellate settlement program. This is not a mere formality — the program can be very effective in the right cases, particularly as it’s an opportunity for both sides to consider the value of compromise when weighed against the risk of an uncertain outcome. The appellate settlement program also acts to toll the deadline for filing your opening brief — if the case is taken out of the program, you will be issued a new date for the opening brief. If you are handling the appeal yourself, you should be aware that a motion for extension of time (MOET) is routinely granted and generally opposing counsel will not object to a first or second request for extension of time. If this is your first appeal, find a sample brief or five upon which you can model your work. And by all means, pick up the phone. One of the great things about being an OTLA member is you can always find a colleague who’s happy to help. 1. An appellant can request de novo review, but it is disfavored. An appeal that relies upon its grant is better left unfiled. Success on Appeal continued from p. 37 38 Trial Lawyer | Summer 2024
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