August 27, 2014
It is becoming more important across all areas of the law to consider how to plan for possible appeals from trial court decisions.
At the same time, early planning for possible appeals presents many real-world challenges.
At one extreme, all litigation can be approached as needing early planning for a possible later appeal. At another extreme, all consideration of possible appeal issues may be put aside until after a trial court decision is reached.
Early efforts to prepare for a possible appeal of a trial court ruling may result in an opportunity to optimize the court record and document issues to enhance any subsequent appeal. And if an appeal is needed, arrangements are in place and can move ahead.
However, this approach may also lead to client confusion and loss of trust in the case, as well as possible coordination difficulties by trial and appellate attorneys as they seek to conduct the present trial and prepare for a possible appeal at the same time.
And the up-front estimates of the eventual costs for a trial and appeal can create additional stress for clients.
In turn, postponement of any appeal considerations can simplify a case for the trial attorney and reduce initial cost estimates for clients.
However, problems with this approach can relate to limitations on preparing a strong appeal after the trial court ruling, within the available time.
This complex issue has been addressed in the family law context by Scott J. Horenstein in the 2013-2014 pocket parts to Family and Community Property Law, volumes 19 to 21 of Washington Practice.
New section 51.34 discusses the need for early planning for possible later appeals in family law cases. The following guidelines are suggested for family law attorneys:
If a case is likely to go to trial, a family law appellate attorney should be brought in as a consultant well before the trial starts;
If, during the trial, a possible appeal appears likely, appellate counsel should be immediately brought into the case;
A successful appeal may often depend on “well-prepared findings of fact and conclusions of law”.
The author also notes his “successful outcomes for clients on appeal by obtaining early intervention by appellate counsel”.
All cases can potentially need parallel tracking of the trial case and potential appeal. Attorneys thus have to seek the right balance between “what-if” preparation, and costs and complexity, for each case and client.
More information on family law may be found in volumes 19 to 21 and the associated Handbook volumes 22 and 22A of Washington Practice.
In addition, whenever attorneys wish to locate specific resource materials, Methods of Practice (volumes 1 to 1C) of Washington Practice, can provide useful assistance. The family law volumes are summarized in Chapter 73, Vol. 1C of Methods of Practice. Excerpts from all of the volumes of Washington Practice are presented in an easily-searchable format, so that potential cites may be quickly located. The individual volumes of interest may then be examined for the needed details.