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Laying Foundation For Appellate Success In The Trial Court – Trusts & Estates Litigators

In case you missed GMSR partner Alana Rotter’s recent presentation on how trusts and estates litigators can lay foundation in the trial court for future appellate success, here are some key takeaways:

Create a Clear Record
  • Have a court reporter transcribe all significant proceedings
  • If the reporter is not present for in-chambers conversations or sidebars, summarize them on the record
  • Clarify any witness testimony that would be unclear to a later reader (e.g., “over there”; “this big”; “this paragraph”)
  • Lodge transcripts of video depositions played at trial, indicating which portions were played
Evidentiary Issues
  • Objections must be specific, and on the record
  • If the court overrules an objection without prejudice or defers its ruling, re-raise the objection to preserve it
  • If the court excludes your evidence, make an offer of proof – describe both the evidence and its relevance
  • During summary judgment proceedings, objections not ruled on are deemed denied, but preserved for appeal
Statements of Decision
  • Available “upon the trial of a question of fact” (i.e., generally for trials, not motions)
  • May limit the inferences the Court of Appeal will draw in favor of the judgment – thus, generally requested by the losing party
  • Drafting and objection process is highly technical, and can be counter-intuitive; appellate lawyers can provide guidance
  • Appealable pre-trial orders must be immediately appealed – waiting until the end of the case waives the right to appeal them
  • There are many more appealable orders in probate and family law than in general civil practice – familiarize yourself with the list, or consult an appellate lawyer
  • For significant non-appealable rulings causing irreparable harm, consider a writ petition

Alana Rotter