Taylor C. Young 2014-09-03 01:25:50
What to Do When a Case Goes Sideways It happens sometimes. Despite best efforts and good intentions, what should have been a strong case goes sideways. Maybe a witness makes an unexpected and unwarranted concession in a deposition. Perhaps the trial court adopts an incorrect view of a salient legal issue. There are myriad ways it can start. But once it does, even the strongest elements of your case can get swept up in negative momentum leading to bad results in the trial court. Unfortunately, standards of review are such that getting a case straightened out after the fact may be beyond the appellate court’s power. It is far better to correct course early, than to rely on a second chance from a higher court. With this in mind, here are some tips for recognizing and handling a sideways case. RECOGNIZE THE SIGNS The trial court’s rulings can provide early indications that a case is in danger of going sideways. For example, a well-pleaded complaint may proceed “even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” This Rule 12(b)(6) standard allows many cases to survive early dismissal, but resort to the language in the court’s ruling is usually a signal that the merits of the case are less than obvious to the court. A more subtle clue that the case is getting wonky is when the other side’s case theme appears in the trial court’s questions, comments, or rulings. A good case theme gives the trial court a ready answer to a critical question, “What is this case about?” It can color everything in the case, if it gains traction. Indications that the other side’s theme is resonating with the court should not be taken lightly. The same thing holds for witnesses. Testimony that hedges, equivocates, or echoes the other side’s theme, can provide an opening for the opposition to exploit. If not timely shored up through rehabilitation or additional facts, such waffling testimony may lead to an argument that an element has been conceded or there is insufficient evidence to support a genuine issue of material fact. Although inferences are to be drawn in favor of the non-moving party, relying solely on inferences in a case that started out strong is a good sign the case is now off kilter. GO BACK TO BASICS If it looks like a case is going sideways, a good first step is to back to basics. Confirm every element that must be proven to prevail on the claims and identify the facts that can be marshalled in support. Over the course of the case, it may be that certain claims or elements have been neglected. The court may be reacting to the perceived weakness. If so, there may yet be time to correct the issue. Or, it may be that the proof has been fully developed, but it has not clearly been presented to the court during motion practice or the court and parties have become distracted with tangential issues. Going back to basics may reveal that the problem is not in the case, but with the court’s understanding of the applicable law or legal standards. A bench memo, jury instructions, or motion for reconsideration may present opportunities to dislodge the other side’s theme, refocus the case on the fundamentals, and give the court comfort that the case actually has legs. KEEP CALM AND MAKE A RECORD Even when all efforts are made to correct course, some cases just refuse to straighten out in the trial court. Although it is natural to become frustrated when the court persists in a mistaken view of the law or facts, don’t. Instead, keep calm and make a record. Remember that everything that happens in a sideways case has two audiences: the trial court and the appellate court that will be called upon to review the trial court’s decisions and the ultimate judgment. Measured and deliberate objections and arguments stand out in an appellate record. Bombastic exhortations and bickering are discounted. It is imperative to make a record for appeal when relief has become unlikely in the trial court. The court erroneously excludes a critical area of testimony? Make an offer of proof. Otherwise, the appellate court may not be able to determine what the witness’s testimony would have been and how the decision to exclude the witness was harmful. The court improperly allows prejudicial evidence? Object. And move for a new trial. Make sure you can explain exactly how the prejudicial evidence affected the verdict. Wrongfully instructed jury comes back with an inconsistent verdict? Object. Don’t wait to address it in a motion for new trial. Ask the court to resubmit the case. Failure to do so may waive the issue on appeal. CALL YOUR FRIENDLY APPELLATE LAWYER If the case looks like it is going sideways, don’t delay. Act. When all else fails, and preferably before all else fails, call your friendly appellate lawyer. We see more than our fair share of wonky cases. Let us help get things straightened out. Taylor C. Young is an AV Preeminent Peer Review Rated appellate lawyer and co-founder of Mandel Young, a Phoenixbased appellate boutique. His firm’s mission is to level the litigation playing field by providing small-to-mid size law firms, in-house legal departments, and others ready access to topnotch appellate counsel when they need it most. Taylor handles appeals in a wide range of substantive areas, including complex commercial disputes, torts, and family law. He regularly teaches, speaks, and writes on appellate topics. His musings can be found on Mandel Young’s appellate blog – www.myappellate.com and at www.mandelyoung.com.
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