Appellate Briefs - December 2011: When Should You Start Thinking About Your Appeal?


     Trial attorneys have many issues to consider during a representation, and often the eventuality of an appeal is not at the forefront. So when should you start thinking about an appeal?
(a) at the start of the representation;
(b) when drafting or responding to dispositive motions; or
(c) at the start of trial.
     The answer, of course, is (a).
     The reality of an appeal for any case that does not settle should be anticipated from the start.  When developing the theme of your client’s case, consider how that theme will carry through to an appellate court.  When setting up the trial notebook, include a section for legal issues where any issue of law critical to your client’s claims or defenses should be listed.  You can use this section to add additional issues as they arise and to track the pleading of each issue, the presentation of it to the court for resolution, whether by motion or at trial, and its resolution. The trial notebook also should include a section for evidentiary issues that are anticipated and that arise. These issues should be tracked as the case progresses.
     Thinking about an appeal from the start can facilitate appellate representation and increase the likelihood of a positive appellate outcome.  In our next email, we will start discussing anticipating an appeal in each stage of the trial court representation.
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.


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