As the first issue of Appellate Briefs on anticipating an appeal from the start of representation established (click here to read), it never is too early to contemplate the likelihood of an appeal to gain the advantage of a fully developed trial court record and strategy. The first substantive stage of litigation is, of course, the pleadings, in which the parties state their claims and defenses. Anticipating an appeal at this stage requires little more than the full attention that already must attend these documents – assuring that all claims (and all elements) are fully presented, or for the defendant(s) that all defenses are adequately stated.
There are special pleading requirements for some claims and defenses, so be sure to check the applicable state or federal rules of procedure. Similarly there may be certain procedural requirements attendant to the pleading stage, such as providing advance notice to state or other governmental defendants, or the framework for pursuing medical malpractice claims. And there are timeliness considerations, such as statutes of limitation and laches, that must be carefully attended.
As a general rule of appellate review, appellate courts will not consider claims or defenses not pled below, nor will the court consider claims that were dismissed, or defenses that were stricken, if they are not reasserted in subsequent amended pleadings. This general rule applies even when the claims or defenses were dismissed or stricken with prejudice if the pleader did not seek leave to replead, so repleading is the safest choice. Finally, as discovery reveals new information, often new claims or defenses are revealed and need to be asserted by amended pleading, and existing claims and defenses may need to be fine-tuned or even reconsidered.
A legendary trial lawyer once told me that pleadings were his favorite part of the process, except for trial (of course!), because they offered the pleader the chance to tell a compelling story. Sounds like an appellate brief to me, but that’s a discussion for another day.
Best wishes to all for a happy, healthy and prosperous new year.
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 email@example.com