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 identification of lurking appellate issues at the matter’s onset. A sound strategy is early retention of an attorney with appellate expertise to assist in the identification of legal issues that may ultimately result in an appeal. Is there a financial interest in the case that may be excluded from consideration of financial orders because its attainment or value is overly speculative? Is there a nuance of trust law that may impact whether a particular trust instrument plays a role in the financial orders of the case? Does the case involve a unique legally untested business valuation issue? These are what often lead to appealable issues.
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 trial, the appellate counsel is instrumental in creating areas of inquiry that will best establish a proper record for appellate review. During trial, appellate counsel can assist trial counsel’s navigation of the unexpected evidentiary twists and turns that inevitably occur. This type of preparation is critical for three reasons:
- 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 representation of your client.
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Campbell D. Barrett chairs Pullman & Comley’s family law practice and focuses primarily on matrimonial and appellate matters. He has participated in scores of bench and jury trials on a wide variety of complicated family, civil, administrative and criminal matters in Connecticut's state and federal courts. In addition, he has been lead counsel on more than 40 appeals to the Connecticut Supreme and Appellate Courts. Campbell is a fellow of the American Academy of Matrimonial Lawyers and has successfully argued numerous matrimonial law cases of first impression in the Connecticut Supreme and Appellate Courts.
Lynda B. Munro, Connecticut Superior Court Judge (Ret.), is a member of the firm's alternative dispute resolution (ADR) practice focusing in resolution of civil and family disputes. She serves as a mediator, arbitrator, discovery master, and private judge in civil matters and family financial and custody disputes. Judge Munro retired in 2014 after 20 years of service. She served on the civil complex litigation docket, as the chief administrative judge for family matters and presiding judge in Stamford and other regions of the state. Judge Munro is an American Arbitration Association (AAA)-qualified arbitrator.
