Appellate Insights

Before trial begins, the parties file proposed jury instructions and verdict forms.  Those filings are crucial, but they are never the last word.  During trial, instructions and verdict forms evolve—often significantly—through emails between counsel and the court.  Those emails can be critical on appeal.  The problem is that they rarely make it into the appellate record.

• Emails are not self-filing.  Unless someone affirmatively files the email exchanges with the court, they are not part of the record on appeal.  Do not assume the court will do this; it usually won’t.

• Changes made by email can be dispositive.  A revised damages instruction, a reworded special verdict question, a dropped limitation—these changes may determine whether an appellate argument exists at all.

• Build the record daily.  Designate one member of the trial team to be copied on every email to or from the court regarding instructions or verdict forms.  That person should compile the emails and attachments daily—organized to show who proposed what and when—and file them under a caption such as “Emails With Court Re: Jury Instructions / Verdict Forms.”

► The practical message:  The appellate record includes what gets filed, not what gets emailed.  Make it a trial-team habit to file verdict/instruction-related email exchanges daily.