We often quip that the best way to establish a winning record as an appellate lawyer is to represent the party that won below; that’s no joke. In nearly every appellate court— state or federal— appellants have an uphill battle. For both practical and legal reasons, that makes sense. If parties got a total do-over in appellate courts, our already busy court systems would grind to a halt. In addition, trial judges are the jurists who actually live with cases, come to know parties and counsel, and thus often are the best positioned to be the deciders on key legal and factual issues.
While still before the trial court, litigants can do a lot to increase their odds of success on appeal if they do find themselves unlucky enough to become the appellant. I often sound like a broken record when I stress the importance of making your record. Yet two recent published decisions from the Eighth Circuit Court of Appeals emphasize just that point.
The first case, from the Eighth Circuit Bankruptcy Appellate Panel, demonstrates that the court can do little to help an appellant without a meaningful record. In John Huonder v. Champion Milking Systems, No. 16-6011 (8th Cir. Sept. 29, 2016), appellant-debtors brought an adversary proceeding in the bankruptcy court against a creditor after the creditor allegedly improperly tried to collect debts that had been discharged in the bankruptcy (in bankruptcy lingo, the creditors allegedly violated the discharge injunction). The debtors prevailed below but were not awarded all the attorney fees they had requested, nor were they awarded punitive damages. They appealed both issues, and lost both. The Court concluded, “both arguments fail, for the same reason: The record on appeal affords us no basis for evaluating their merits.” Slip op. at 3.
Simply put, the debtors failed to ensure that trial exhibits and a transcript from a post-trial telephonic conference that they wanted to rely upon became part of the appellate record. While the appellants repeatedly referred to various exhibits and a post-trial “oral order” from the bankruptcy court in their appellate brief, the appellate court could not access these exhibits. Nor could it read the lower court’s oral order, because, the court admonished, “we have not been provided a transcript of that hearing.” Id. at 4.
Unable to review the bankruptcy court’s findings of fact or conclusions of law, the court had no basis to determine whether or not the lower court had abused its discretion, and so it affirmed.
In the second case, a Federal Employers Liability Act (“FELA”) negligence case arising from the death of two railroad workers, the defendant-appellant railroad Burlington Northern Santa Fe (“BNSF”) failed to renew its Rule 50(b) motion for judgment as a matter of law after the jury returned its verdict in favor of the plaintiffs. Burckhard v. BNSF Ry. Co., No. 15-2106 (8th Cir. Sept. 14, 2016). BNSF contended that the issues it wished to raise on appeal were “purely legal issues” and so no renewed Judgment as a matter of law (“JMOL”) motion post-verdict was required to preserve its arguments (a risky proposition upon which no litigant should rely— moving for JMOL under Rule 50(a) prior to verdict and renewing under Rule 50(b) post-verdict is prudent).
The court “assumed for the sake of analysis” that purely legal issues could be raised on appeal without a Rule 50(b) motion. Slip op. at 5, 7. But it then held that neither of the two issues BNSF wished to raise, relating to the foreseeability of the harm and BNSF’s claim that the plaintiffs required expert witness testimony regarding the standard of care, was purely legal. The court followed its precedent in Ludlow v. BNSF Ry. Co., 788 F.3d 794, 800 (8th Cir. 2015) to conclude that it had no basis to review a party’s JMOL motion challenging the sufficiency of the evidence if that party had not renewed its Rule 50(a) motion in a post-verdict Rule 50(b) motion. The court concluded it had no basis to review these issues, and so affirmed the district court.
The takeaway from these two cases? Diligently protect your appellate record when you’re before the trial court. File your exhibits below and order transcripts of any material proceedings, and then ensure those materials become part of the appellate record. Move, object, move, and object again. Ensure that you make all necessary trial and post-trial motions. Should you end up appealing, keep the deck from being stacked against you by ensuring you have the record to appeal. But at least you will be providing the appellate courts the tools that it needs to rule in your favor.
