Every trial has the potential for an appeal. The likelihood of an appeal is enhanced when the judge has picked a clear winner and loser after a family bench trial. Every good trial lawyer must recognize this plain fact. The duty of a trial lawyer, therefore, is two-fold: to win the case and protect the record for appellate review. Indeed, the presentation of evidence and the marshaling of legal arguments must anticipate how they are likely to be framed for an appellate tribunal. These strategic judgments must be made early during discovery and trial preparation to avoid inducing appealable error.
There is an inherent tension between the concept of inducing error and the concept of providing a strong record for purposes of possible appeal. The latter suggests a lawyer unintentionally leading (or indeed, in some unfortunate circumstances, intentionally misleading) the court down a path toward reversible error. In stark contrast, the former involves the proper anticipation, preparation, and presentation of the relevant legal arguments in a case. The distinction between these two concepts is often the difference between winning and losing a family law appeal.
The key to creating a strong record for appeal is
Once the important issues are identified, discovery should be tailored to elicit the evidence necessary for optimal presentation at trial. In the lead-up to
- In the event the trial judge agrees with the legal theory advanced, the lawyer has created a record that supports the decision, thus protecting the result.
- In the event the trial disagrees with the theory, the lawyer has created a strong record of the arguments against the court’s decision, thus enhancing the likelihood of a reversal.
- In the event the bench trial is heard before an inexperienced judge, appellate counsel acts as the governor for the trial counsel’s subtle education of the judge, thus providing a better-protected result.
The art of advocacy includes the pretrial, trial, and appellate stages in the life of a case. They are three legs of the stool, each interdependent on the other. At the earliest stages of your case construction, you must be thinking of the end stage: the appeal. This approach ensures that you have met the gold standard in
Campbell D. Barrett chairs Pullman & Comley’s family law practice and focuses primarily on matrimonial and appellate matters. He has participated in scores of
Lynda B. Munro, Connecticut Superior Court Judge (Ret.), is a member of the firm's alternative dispute resolution (ADR) practice focusing