Trial Magazine

A verdict for your client may not be the end of your case—sometimes, it is a ticket to a court of appeals. Following these seven steps can safeguard that verdict.

1. Start at the beginning. Chart your course from the complaint onward: Map the elements of each claim, plead them, and prove them. Your complaint shapes discovery, motion practice, and your trial plan—the template on which the record will be built. Showing the appellate court that you proved each element of your claims under the appropriate standard of proof enables that court to give due deference to the trial court’s rulings and the fact-finders’ verdict.

2. Consult pattern jury instructions early. Use your jurisdiction’s pattern jury instructions to draft the complaint, plan discovery, and provide the framework for your proof at trial. Your trial presentation, including opening, witness examinations, evidence, and closing will resonate doubly with the fact-finders if they mirror the jury instructions.

3. Master the jury instructions and verdict forms. Your proposed jury instructions should be consistent with approved forms and, if necessary, add guidance aligned to your specific case. For example, in a product defect case, name the product and describe its defect and the injury it caused your client as much as you can in the instructions.

Clarity and simplicity are key. If you don’t understand every word, the jurors won’t either. Use the instructions to frame your closing argument so everything matches.

Verdict forms matter too. This is where the defense will try to sow error, or at least confusion, as a basis for arguing error. If you can, frame jury questions to invite “yes” answers. For example, “Was smoking [the defendant’s or brand name] cigarettes a legal cause of [or “a substantial factor in”] [the plaintiff’s] lung cancer?”

Verdict forms that proceed logically will not only guide the fact-finders but also satisfy the reviewing court that the ­fact-finders were not confused, they proceeded reasonably, and their factual determinations are consistent with the law.

4. Beware of punitive damages. They are subject to de novo review—essentially retrial on appeal.¹ Punitive damages instructions must comply with your state’s law and with U.S. Supreme Court jurisprudence.² Some, but not all, state pattern instructions have incorporated these requirements. Arm your punitive damages award against de novo scrutiny by including language from these decisions so the record shows that the defendant’s due process rights were protected and that the jury used appropriate considerations of reprehensibility in reaching a quantum of punitive damages necessary to vindicate societal interests in punishment and deterrence.

5. Don’t forget to object! Object on the record to the ­defendant’s proposed jury instructions and verdict forms or to any of the court’s instructions or verdict form changes that you believe are inaccurate or unfair. And avoid the waiver trap: It can doom even the most sophisticated counsel.

An appellee's best ammunition is a reliable record.

6. Consult an appellate specialist. Consult with an appellate specialist as early as possible—especially on jury instructions and verdict forms and to make sure you are following your elements of proof checklist. An appellee’s best ammunition is a reliable record.

Use that appellate specialist again to help with your appellee brief. Highlighting the institutional interests of the reviewing court is at least as important as retelling your trial story in a compelling way, and a specialist can frame your arguments so they reinforce principles the court has articulated in other cases or show that affirming your case prevents a flood of future appeals.

7. Get some perspective. Remember that except for ­punitive damages, this isn’t a retrial. Consult with trusted colleagues to help frame your arguments for a new audience. This will assure they resonate with people who—like the appellate judges—are familiar with the law but are newcomers to the facts of your case.

Elizabeth Cabraser is a partner at Lieff Cabraser Heimann & Bernstein in San ­Francisco. She can be reached at ecabraser@lchb.com. 

Notes

1. See Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424 (2001).
2. Philip Morris USA v. Williams, 549 U.S. 346 (2007); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996).