How To Be Your Own Appellate Counsel At Trial

Appellate lawyers will tell you that many cases justify the extra cost of having an appellate lawyer involved long before a notice of appeal is filed.

And they are right. But trial lawyers have been trying cases without appellate lawyers for a long time, and it remains true that many cases don't justify the extra cost. Having said that, it is equally true that any case worth taking to trial that justifies a little forethought about a possible appeal. What follows is a list of commonly overlooked trial matters that can make or break an appeal.

• The pretrial order: Most federal pretrial orders contain a recitation that the pleadings are amended "to conform with" the pretrial order. This is not mere boilerplate. Any claim or defense omitted from the pretrial order is no longer a part of the case, regardless of how often, or well, it was pled. Conversely, any claim or defense in the pretrial order is now in the case, regardless of whether it was ever previously pled.