The Best Trial Lawyers Are Also Appellate Lawyers

If you want to be a great trial lawyer, you must not only actually try cases, but you also need to argue appeals.

My colleagues and I once had a jury trial where we believed the Court was making incorrect evidentiary rulings against us throughout the trial, starting with the first witness.  In the end it did not matter, as we obtained a spectacular verdict, which was everything we could have hoped from trial. We had no desire to appeal.

But during the trial we were concerned. In our view, the Court was repeatedly issuing rulings that admitted evidence we thought prior orders precluded. And the judge had made it clear to us, even before jury selection, that he thought lawyers objected during trial too much to try to manipulate how the trial proceeded rather than because there was an actual basis to object (which is absolutely true). In other words, he didn’t want us wasting the jury’s time with objections.

However, we had to object, even to the point of clearly raising the Court’s ire against us. As a firm that handles not only trials and arbitrations but also appeals, we knew that absent clear (and, where possible easy to follow) objections on the record, the appellate court wouldn’t care how bad the Court’s evidentiary rulings were: without a preserved objection, our ability to appeal a given evidentiary ruling during trial would almost certainly be waived.

This seems straightforward, but I’ve tried cases with and against trial lawyers who seem to forget this. Trial is intense. It’s easy to focus on the moment, and only on the moment (though that’s problematic in many ways, not least that you must always be aware of how everything will play out in your summation). But if you don’t constantly keep in mind the appeal (since the verdict or judgment from any trial in court can be appealed), you won’t be fighting for your client as hard as you can. And the best way to keep in mind the appeal—building a record that can help you win if you wish to appeal, and one that can help you defeat your adversary if she appeals—is to argue appeals yourself.

Then you will have the experience of swimming through a trial record, writing and responding to the briefs, and arguing before a panel of appellate judges—who in the best case scenario will not give you more than an hour of their time at the argument, even if your trial lasted seven weeks—to know how to win on appeal.

Besides the fact that handling appeals will simply make you more aware of appellate issues as you try your case (and, indeed, the entire time you’re prosecuting or defending in litigation), appellate experience will also help you craft the in-court record you need. While there are many evidentiary arguments during trial that are as simple as a lawyer jumping up to say “objection” followed immediately by an impatient “overruled!”, the trial lawyer needs to do her best to build an appellate record that makes later appellate arguments easier. You don’t want on appeal to quote three lines from one page of a transcript, then five lines from another page, with a lot of text in square brackets since the speakers used “he” or “it” and the appellate court won’t know what you’re complaining about without this tortured combination of puzzle pieces. If you handle appeals and there’s any way you can make even the tiniest speaking objection or can request a sidebar, you’ll know how to try to get out enough so that the appellate judges and clerks who you want to convince to go your way months later, and who weren’t in court, can quickly figure out what exactly happened in court.

You have to handle the evidentiary hearing for what it is in the moment and for what it means at closing (and probably what it will look like to the client if one is in attendance) and think about an appeal, all at the same time.

This is not easy advice to follow, which is why the best trial lawyers also handle appeals all the time, so they can balance all this and win at trial for their clients.

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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at [email protected].