Day on Torts
I read a tweet the other day suggesting that a lawyer should have had an appellate lawyer present at trial. I cant remember who wrote the tweet but, if I had to guess, it was an appellate lawyer.
I guess an appellate lawyer will do you some good at trial – if you don’t know the law of preserving issues for appeal. Then again, if you don’t know that law of preserving issues for appeal, you lack knowledge of an important part of trying a case.
The law of preserving issues for appeal is not that complicated. It varies from jurisdiction to jurisdiction, I suppose, but in Tennessee it is pretty easy. For example, on evidence issues, you must make a timely, specific objection on the evidence point and are best served by stating the grounds for your objection. You must insist upon a ruling to the objection. If a judge prohibits you from introducing evidence, you must make an offer of proof out of the presence of the jury. All of this must be on the record.
Other rules apply for jury selection, opening statement and closing argument, and jury instructions. And, if you lose the case, you must know how to file a motion for new trial. That is simple, too: you must timely file a motion for new trial that states all of the errors that support your request for a new trial. The motion must be reasonably specific. Failure to list the error in the motion for a new trial is usually a waiver of the issue.
My point is not to summarize the law in this area. Rather, I simply to point out that it is not that difficult to know the law in this area and that it is reasonable to expect that anyone trying a jury trial should know the law on these subject.
Oh, I guess that something extra-ordinary can come up once in a blue moon, and that it might be nice for an appellate lawyer who knows about once-in-a-blue-moon things to be sitting at your left elbow .
But is it necessary? Is it reasonable? No, not in my mind. Certainly it isn’t reasonable or necessary in 98% of the cases tried in the state courts of Tennessee. The cost of having another lawyer at counsel table would add little to most rials or appeals .
Now, my friends who are appellate lawyers may well disagree. I understand that. But they have a tough row to hoe to persuade me that I need them at counsel table in the vast majority of jury trials. Indeed, I will yield on one point: if you hold yourself out as a trial lawyer and don’t know how to preserve an issue for an appeal make sure you have an appellate lawyer at your side.
Just don’t charge your client for it.