Appellate Briefs - February 2012: Anticipating An Appeal In the Discovery Phase


     Just thinking about this topic strikes fear in the heart of all but the most intrepid. Okay, that’s a bit of an exaggeration, but I’m sure many trial and appellate lawyers know what I mean.  There are several layers of strategic planning arising in discovery that involve consideration of appellate issues. Most commonly, appellate lawyers are consulted after an adverse ruling on a discovery issue, by the party who did not obtain the requested relief and is certain an immediate appeal must be taken.  Whether and when a discovery order can be reviewed prior to the end of the litigation is a matter far too complex for this brief note. As a generalization, it is safer to assume for purposes of planning the discovery you seek and your responses to discovery sought that nearly all such orders will not be reviewed until the end of the case. Then, if you find yourself on the wrong end of a discovery order (and who hasn’t?), your trusted appellate advisor can advise if your order fits into the narrow categories for which review is immediately available.    
     Thinking about what can and cannot be appealed may well inform your decisions on what discovery to seek, and how to respond to discovery served on your client. Also important to these decisions is the fundamental appellate rule that no relief will be granted on appeal when relief was not sought below, and its corollary that you cannot get by appeal that which was not sought below. Seems obvious, right? Yet it is not uncommon to read appellate decisions in which a litigant complains about discovery tactics, or the failure of a party to provide discovery, when these issues never were presented to, or resolved by, the trial court. Good luck with that.
     Finally, attention to proving the elements of your client’s claims or defenses with a solid evidentiary basis that will withstand appellate review should be the polestar in framing the discovery you will seek. Equally important to sustaining your client’s position through an appeal is discovering, and then developing an effective strategy for dealing with, the evidence in the hands of your opponent on the claims and defenses at issue.  Careful attention to what seem to be elemental propositions will help ensure your success on appeal.
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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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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