Appellate Insights

Before you write the first word in your appellant’s opening brief, there’s a crucial phase in every appeal that you cannot bypass: mastering the trial record.  For young appellate lawyers especially, beginning to review the record can feel like diving into a legal abyss—thousands of pages of documents, transcripts, and rulings with no map and no guarantee of finding any treasure.  Here are some practical tips for approaching the record like a pro:

• Start with a conversation, not the case file.  Trial counsel can help you quickly identify potential issues.  Just remember to stay open to identifying others.

• Know the universe you’re working in.  The “record” consists of everything filed in the trial court, as well as what was argued, admitted and excluded.  Be meticulous in gathering transcripts (including pretrial motion hearings and jury instructions).  Review the trial court’s docket to ensure you haven’t missed anything.

• Begin at the end.  Before wading into thousands of pages, read the jury’s verdict or court’s statement of decision, counsel’s closing arguments, and any post-trial motions.  These usually frame the key legal issues.  Then work backward, focusing on jury instructions, verdict forms, and pretrial rulings, where many appeal-worthy errors lurk.

• Organize like your sanity depends on it.  Build issue lists, timelines, and a who’s-who list.  Take structured notes with clear and consistent references to trial exhibits.  Track objections and rulings like a hawk.  Your notes should make re-finding any quote or ruling fast and frustration-free.

▶ The practical message:  A well-studied record can make or break an appeal.  Do the deep record review up front, and your brief will almost write itself.  (Almost.)