Appellate Briefs - April 2012: Anticipating an Appeal as You Prepare for Trial


The pleadings and pre-trial motions are finished, discovery is complete, mediation was unsuccessful and you are getting ready to go to trial.  What can you do in this final preparatory phase to increase the likelihood of success on appeal?  In the broadest sense, just think.  Sounds too simple, right?  But most failures to preserve issues arise from a lack of forethought, heightened by the pressures and demands of imminent trial.
So, as you are reviewing your final trial preparations, consider at each step whether you have covered all possible issues and either already made your record, or laid out the plan to do so at the proper time.  For example, do your motions in limine address all evidentiary issues that can or should be raised just before trial?  Do you have responses prepared to the motions in limine you reasonably anticipate from your opposition?  Are you prepared to renew and restate the basis for any of your motions in limine that are denied when the subject evidence is elicited at trial?  Similarly, reviewing jury instructions for completeness, and reviewing objections to those instructions proposed by your opponent well in advance of the actual charge conference will help to ensure that nothing is missed.  There are many other areas like these that you can review and reflect on in advance, before the true heat of battle, to be sure you are fully prepared.
Marie Tomassi is Florida Bar Board Certified in Appellate Practice. She has been an attorney with Trenam Kemker since 1988 and serves on the firm's three person Management Committee. She can be reached at or 727-820-3952.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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