Making an Appealing Record on Appeal

Are you an attorney that is preparing to appeal a court order for your client? Then take the advice from divorce lawyer Paul Feinstein, as he explains how to easily navigate the appealing process.

By Paul L. Feinstein
Updated: January 14, 2015

Even if you are not an appellate lawyer, there is a lot you can do to help your client with a possible appeal. I do both trial and appellate work in Chicago, and more often than not, when I am asked to do an appeal for a case I have not tried, the record on appeal is in horrendous shape. If you are trying the case, there are a number of things you can do to minimize the problems.

You should do at least some basic research as to appellate jurisdiction in your state, so that any particular findings that are required are included. For example, in Illinois, if more than one post-decree action is pending, the trial court must make a finding that there is no just reason to delay enforcement or appeal (Illinois Supreme Court Rule 304). Without that finding, if multiple parties or multiple claims are involved in an action, an appeal cannot be taken from a final judgment as to one or more but fewer than all of the parties or the claims. Some states have different rules for dissolution of marriage cases and post-decree cases. Many appellate courts are uncertain even as to the applicable rules, so even if you do not fancy yourself an appellate lawyer, this is one area of the law you should get up to speed on.

An area in which I see a tremendous amount of room for improvement is the use of offers of proof. Many lawyers do not resort to them, or if they do, they do them improperly. The offer of proof is crucial, because if you do not proffer to the appellate court the nature of what you are trying to show, the appellate court will not speculate as to what you were talking about. There are generally two sorts of offers: informal offers, in which you basically tell the court what you wish to introduce; and formal offers, which are in the form in questions and answers to a witness. In In re Marriage of Hamilton, (non-published/non citable) 2008 WL 4228380 Cal.App. 6 Dist. 2008, the offer of proof regarding the significance of an unavailable witness' testimony was not specific enough. Simarily, in State v. Townsend, 737 S.W.2d 191 (MO. 1987), it was noted that counsel's offer of proof failed to state the facts in sufficient detail to establish the admissibility of the evidence. Significantly, counsel never mentioned the impeachment purpose of the evidence. It was held that the court need not speculate on the parties' reasons for introducing evidence, and it may also assume that the party making the offer of proof has stated it as fully and favorably as he can.

Sometimes an offer is not necessary where the nature of the evidence is apparent. But don’t take the chance. Also, if the nature of your evidence is such that it will be really difficult to set it out in summary or if you have a witness who is not cooperative or able, consider filing a written offer of proof.

Similarly, you might consider motions in limine before or at the start of trial. Although normally motions in limine are used in jury trials to avoid confusing the jury, there is no reason they cannot be used in a bench trial. There may be areas that are really not relevant that you don’t want the judge to start paying attention to such as criminal conduct, dissipation of assets in a time frame that is not relevant, motions to exclude marital misconduct in those states where it is not relevant, and the like. Another example might be a motion to bar expert testimony in the event that improper legal conclusions are contained, or that the expert does not possess the requisite knowledge to assist the court, or that the methodology does not conform to professional standards. See, for example, Presler v. Compson Tennis Club Associates, 815 N.Y.S.2d 367 (2006). The trial court granted a motion in limine seeking to preclude plaintiffs from presenting an opinion of their expert with respect to the claim of damages for future loss of household services provided by the plaintiff. This is a case showing use of both the motion in limine and the offer of proof. Once the motion in limine was granted, the plaintiff provided the expert testimony as an offer of proof giving all details. On appeal the order in limine was reversed. In M. v. New York City Transit Authority, 781 N.Y.S.2d 865 (2004), a motion in limine was properly granted to exclude evidence that a party was a heroin addict when merely brought to be introduced for the purpose of impeaching his credibility on the grounds of immoral, vicious, or criminal acts of moral turpitude. There was a second possible ground for a motion in limine in that the party was also in a methadone-treatment program, and there was a New York statute of confidentiality. Confidentiality could also be used as a basis for a motion in limine with respect to medical- and mental-health records if appropriate. In Gordon v. Gordon, 20 Misc. 3d 1131 (A), N.Y.SUP. 2008 (unreported), the husband sought an order in limine preventing evidence regarding appreciation of the value of his real estate holdings, claiming that they were the result of passive market conditions and not his active participation in the business during the marriage. This motion in limine was denied because the wife herself was seeking expert fees so that she could obtain evidence of this very issue.

See also Pugliese v. Superior Court, 53 Cal.Rptr.3d 681 (2007). In this case, the wife sued the husband in tort for assault, domestic violence, and other such actions. The husband filed a motion in limine to exclude evidence of any such conduct alleged to occur more than three years prior to the filing of the complaint, based on the California statue of limitations. The trial court granted the motion in limine, and the wife had to sue the court for a writ of mandate. The wife's petition was granted because of the continuing tort doctrine which expanded the statute of limitations. However, in a proper case, this is one way to keep out such evidence.

In In re Marriage of Weiss, 2004 WL 1627187 (non-published/non citable) Cal.App. 2 Dist. 2004, the husband had originally sent discovery out to the wife. She certified that she had complied with all such discovery. Then, on the eve of trial, she sought to include certain trial evidence which should have been produced in discovery but was not. The husband's motion in limine to exclude those trial exhibits was granted and affirmed on appeal. The wife had withheld these documents for approximately one year and then revealed them less than one week before trial.

In In re Marriage of Shaban, 105 Cal.Rptr.2d 863 (2001), a document had been executed that the husband claimed was a written prenuptial agreement in Egypt. The husband presented an expert who was not allowed to testify because the trial judge concluded the document was a marriage "certificate" and not a written prenuptial agreement. The Court of Appeals agreed and affirmed the exclusion of the expert testimony. It was specifically noted that although the husband complained of the $25,000 expense of flying in his expert from London, that the court indicated a motion in limine could have been made well prior to trial, so the husband could have spared himself the expense of flying the expert in. It was also noted that the making of the motion itself would possibly be expensive; but if the testimony been allowed then the trial may have had to be continued to allow the wife to call her own expert. The suggestion of course is that a "reverse" motion in limine be filed, not to obtain a ruling of inadmissibility, but rather admissibility.

These must be used carefully, because if you have the trial court bar something that really should not be barred, that could open your case up for an appeal, as in Presler.

Be familiar with the law in your state regarding documents needed for the record on appeal such as transcripts. Many times, I have taken on an appeal where the party did not even have a court reporter present because they were not sure there was going to be an appeal. Although in many states, you can have a bystander's transcript or some other stipulation, those can be very problematic. If you think there is any chance that the case will be appealed, insist on having a court reporter present.

It also makes sense to be familiar with the appropriate standard of review in your case. Generally speaking, questions of law are viewed by the appellate court de novo. Factual determinations are more within the court's discretion.

Also be familiar with the rules in your state regarding motion practice such as summary judgment. Many states have requirements regarding affidavits. Make sure everything is properly filed, including deposition transcripts when required in summary judgment practice.

Similarly, don't be afraid to ask for sidebars. These are particularly good when your opponent's client is on the stand and you are concerned about an area of testimony, but you don't want it said in front of the witness who will use that as coaching. But ask that any sidebars be on the record. Because as far as the appellate court is concerned, if it is not on the record, it didn't happen.

Don't forget about asking the court to take judicial notice of documents containing readily verifiable facts. Public records are a good area for judicial notice such as deeds. Some states even allow judicial notice to be taken by the court of review when it was not sought in the trial court. Muller v. Zollar, 267 Ill.App.3d 339, 642 N.E.2d 860, 862 (Ill.App. 1994). However, you should not count on that. Recently, I used some government websites regarding the prime rates, six-month CD rates, and other financial information from the 1980s, which all of a sudden turned out to be relevant in a case I was trying. These days, there is a ton of information available online of which a court can take judicial notice. See Dulaney v. US, 472 F.Supp.2d 1085 (SD Ill. 2006) (court may judicially notice public records and government documents, including those available from reliable sources on the Internet).

And this goes without saying, but any sort of objection should be made on the record. Generally, if a motion in limine is denied, you must still object to the evidence when it is introduced at trial, or you will have waived the objection.

And of course, under the doctrine of invited error, you will not be able to complain about something that you had the court do, or not do, when you caused that action in the first place. In re Marriage of Saheb and Khazal, 337 Ill.App.3d 315, 880 N.E.2d 537 (Ill.App. 2007). Something else that appears unnecessary to say (except I am currently handling an appeal with this very issue) is that an agreed order generally is not subject to appeal. McGath v. Price, 342 Ill.App.3d 19, 793 N.E.2d 801 (Ill.App. 2003). Sometimes, you'll start a contested matter that ultimately settles. Make sure the record clearly indicates that the order is now agreed. I have found it useful to expressly place a waiver of the right to appeal in such a final order, so the issue does not later appear.

As you can see, there are a number of areas in which the trial lawyer can make the appellate lawyer's life easier.

Paul L. Feinstein, a Chicago sole practitioner with over 30 years of experience, concentrates his practice in family law with emphasis on divorce litigation, custody and visitation, and appeals. He can be reached at (312) 346-6392. View his Divorce Magazine profile.

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By Paul L. Feinstein| January 14, 2009

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