Trying Cases with an Eye Toward Appeal: What Your Lawyer is Thinking and Doing at the Trial Level to Preserve Your Case

Nobody wants to go to Court. In fact, you’ve probably spent your whole life doing everything not to go to Court. But you’re getting divorced. And now, it’s unavoidable. Hopefully, you’re working toward settling your case so that you only have to see the judge when he or she stamps your Final Judgment of Divorce. Hopefully, in a dispute that arises after the divorce, you can speak with your former spouse and reach a resolution.

But, that’s not always possible. Either one side is unreasonable or there is a complex legal or factual issue in your case that both parties see completely differently. Either way, the differences are irreconcilable and you end up before the trial court.

Now, you’re not unique. All family law matters are initially determined at the trial court level. A trial court judge will make a ruling based upon the litany of issues that are presented during your case.

If you feel that the judge “got it wrong” there are two higher courts in New Jersey that a party may seek an appeal from a final trial court order. There is an appeal as a matter of legal right to the New Jersey Appellate Division. A party dissatisfied with a decision of the Appellate Division may seek the appeal to be Certified and heard by the New Jersey Supreme Court. Certification is rare and reserved for only novel legal issues and other very specific circumstances.

While it may sound odd, cases are oftentimes tried with an eye toward the appellate division. That means, even if you’re not thinking of the possibility of appeal at the trial level, be sure that your lawyer is. The possibility of an erroneous legal decision or incorrect application of the law to the facts is always swirling around in our minds. We prepare for and try cases with the notion that we need to “make a record” just in case.

That’s because you have no chance of a successful appeal if you don’t check off all requirements at the trial court level. This requires your lawyer’s attention to a number of different issues, all while trying for a successful adjudication of your trial court issues as well.

For example, while you’re worried about the testimony you’re going to give, or what a witness will recount, your lawyer is thinking about more big picture procedural issues that could ultimately determine the success or failure of your appeal:

1. Preserving issues: If you don’t raise it at the trial level, you waive it at the appellate level. Only in a limited number of circumstances will the appellate division hear a new issue that was not raised before the trial court.
2. Objections: Your lawyer will need to make sure he/she putting everything you believe that the opposing party and the judge are doing incorrectly. You need to ensure that you have a record of the proceedings. Remember, if you don’t raise it, you waive it. This will also require the lawyer to be a bit pushy about getting rulings from the judge on the record.
3. Appropriate motions: If you ultimately appeal on an evidentiary issue or other legal issue, your lawyer needs to have filed the appropriate motions in advance. For example, if you have a problematic expert report, you can’t go through the whole trial without ever having filed a motion in limine to exclude it. Or maybe there are documents you could have requested in advance that could have changed the trial court’s mind. The appellate division may question your lawyer as to why these things were not done and it may ultimately ruin your chances of a successful appeal.
4. Presentation of a clear story: Your lawyer will need to have a theme of your case, to tell a complete story of exactly what happened during the trial court proceedings. Because there is no new evidence or facts presented on appeal, and the appellate division will never hear from the litigant through testimony or otherwise, your lawyer will need to synthesize all the details to humanize your issues.

So, if it feels like your lawyer is being over inclusive, he/she probably is, but you’ll be grateful later on that someone had the foresight to preserve your rights.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com

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