Appellate Magic

A pair of appellate articles appears in today's DJ.
First, Ben Feuer of CALG presents Appellate Magic Relies on Trial Lawyer Preparation, laying out ten common trial mistakes at trial, after the following intro:

Appellate lawyers can seem to perform a kind of magic. They use mystical-sounding terms like "supersedeas," and peer at cases through crystalline prisms called "standards of review." They bury themselves in old books, saw precedents in half, and sometimes pull victory from behind the ear of defeat.

What looks so easy for a magician, though, usually comes from a lot of practice and advance planning. Tricky devices set up just-so, planted audience-members volunteering at the right time, and years of practice.

1. Get transcripts for everything.
2. Get enough facts on the record to tell a story.
3. Follow the summary judgment rules carefully. [Heck, follow all the rules carefully!]
4. Do the Rule 50 dance in federal court.
5. Motions in limine are an appellate lawyer's friend.
6. Use offers of proof to get excluded evidence into the appellate record, and make sure to move to enter admitted evidence into the trial record.
7. Think long and hard about your verdict form.
8. Don't agree to any jury instructions your opponents propose, unless you're absolutely certain you want them.
9. Request a timely statement of decision in California.
10. File a new trial motion is you want to contest the amount of damages.

Second, Wendy Coats presents Proper Planning Prevents Poor Performance:

Preparing for appellate litigation is as much about preparing to defend a win as much as it is about preparing to come back from a loss. Prudent litigators simultaneously prepare their trial and appellate strategy in tandem avoiding the consequences of the maxim, "He who fails to plan, plans to fail."

A. Anticipate If and How an Order is Appealable.
B. Set the Record Straight.
C. Don't Waive Goodbye to an Argument.
D. Three Steps Ahead: Anticipating Objections and Offers of Proof