Lewis on Strategy Mistakes that Sink Appeals

Appellate lawyer Jeffrey Lewis has another post on appeal strategy, this one looking at trial court mistakes that can play out down the line in a way that prevents a successful appeal.  You might think that some of these points — like the idea that you can’t argue about whether there was substantial evidence to support a verdict if you don’t preserve a record that permits that argument to be evaluated — would be common sense.  But the very cases that Lewis cites illustrate the reality that some lawyers handling appeals have essentially no idea what they are doing.  They are making arguments in a vacuum, trying to persuade appellate justices who have not been given the relevant facts and consequently can’t know whether the arguments are correct.

The "bird in the Hand" of the trial record: trying to recapture it after the fact for an appeal can be problematic.

The “bird in the hand” of the trial record: trying to recapture it after the fact for an appeal can be problematic. Photo by Matt Reinbold.

Lewis’ discussion also illustrates that the decision to skip using a court reporter in a civil case can have serious downstream ramifications — ones that may not occur to litigants until it is too late.  All the more reason why lawyers who are developing trial strategy need to consider how a successful appeal might occur.

Related Posts: “Show Don’t Tell” – Legal Writing on Appeal

2 Comments on “Lewis on Strategy Mistakes that Sink Appeals

    • Absolutely! I’m impressed you have the patience to wade through the unpublished opinions, which can be a real slog. I try to keep up, but the volume of material is insane.

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