Appellate Insights

Nov 15, 2016 Alana H. Rotter
Be Careful What You Agree To

Stipulations and other agreements can be an efficient and even helpful way to move a case along in the trial court.  But be wary of being too agreeable:  Under the invited error doctrine, a party that stipulates to a piece of evidence coming in or a jury instruction being given generally forfeits an appellate challenge to that evidence or instruction.  To avoid giving up an otherwise strong appellate argument, consider the following:

  • Carefully assess whether the other side’s proposed evidence and jury instructions are legally founded, and whether they raise any potential appellate issues.
  • Do not stipulate on any issue that may be a meritorious ground for appeal.
  • On any non-stipulated issue, establish a clear record of your objections, either in writing or orally with a court reporter present.  Chambers and sidebar discussions can become routine, but stay vigilant.
  • If you are acquiescing to a position you disagree with only because the court has already resolved the issue against you, say so explicitly, on the record.  Making the best of a bad situation may not constitute invited error.

►  The practical message:  There is value in cooperating and in picking your battles.  But be careful what you agree to, and make sure the record reflects all necessary objections.