Appellate Insights

Litigators concerned about preserving an argument for appeal often ask what they should do in the face of an adverse interim ruling.  For example, if the court rejects your argument that a cause of action shouldn’t go to the jury, do you forfeit review of that ruling by proposing jury instructions?  Or, if the court rejects your proposed order and directs the parties to jointly prepare a different order meeting certain parameters, does cooperating forfeit an argument that your approach was correct?  Here are some guidelines for these situations:

• Make a clear record of your position, whether in writing or in a reported hearing.

• Assess whether the court’s ruling is definitive, or whether the court is open to your renewing the argument later.

• If the court’s ruling isn’t definitive, renew the argument at the appropriate time.

• If the court’s ruling is definitive, case law permits making the best of a bad situation by proceeding along the path the court has directed.  For example, once the court rules that a cause of action will go to the jury, it’s fine to propose jury instructions on that cause of action – you’ll still be able to argue on appeal that it shouldn’t have gone to the jury in the first place.

►  The practical message:  There are nuances to the forfeiture and invited error doctrines.  Knowing how to navigate them maximizes your opportunities to preserve your position for appeal while also making the very best case you can in the trial court.