To win, trial lawyers must master the art of persuasion. But
when they lose, they are tested by their mastery of the art of
preservation. As standards of review in appellate courts have
become increasingly demanding, preservation often requires
coordination with your appellate attorney.
It used to be safe for trial lawyers to preserve
"issues" for appeal. Appellate lawyers could then refine
those issues with more detailed arguments in their briefs. But
increasingly, appellate judges are rejecting this approach. The
evolution began in criminal cases. For example, the Florida Supreme
Court in Steinhorst v. State, 412 So. 2d 332, 338 (Fla.
1982) held that an "argument" was not
"cognizable" unless "the specific contention"
was argued in the trial court. Now, even civil appeals in Florida
are often rejected because the "specific" legal argument
was not made below.
The Eleventh Circuit still allows "new arguments relating
to preserved claims" to be reviewed on appeal. Black v.
Wigington, 811 F.3d 1259, 1268–69 (11th Cir. 2016). But
the Third Circuit has written a scholarly opinion distinguishing
"issues" from "arguments" and concluding that
"arguments" must be preserved with "exacting"
"particularity." U.S. v. Joseph, 730 F.3d 336
(3d Cir. 2013).
The point is that trial lawyers must assume that their issues
will need to be argued as effectively in the trial court as in the
Increasingly appellate courts expect
to hear the identical argument from appellate counsel that trial
counsel made below.
This means trial counsel needs to
coordinate with appellate counsel early.
Not every case can justify an appellate lawyer on the trial
team. But most cases have strategic events that warrant at least a
short consult with your appellate lawyer, or at least with another
legal mind. Identify those strategic events early in a case, try to
specify the arguments that help you with those events, and
don't go it alone. Even when you are allowed to make an oral
argument, consider filing a written argument because it will be
more specific and can be prescreened by your appellate lawyer. If
you are caught off guard by a critical issue, it is better to tell
the court that fact and ask for a moment to reflect on a specific
argument than to bluff your way through. If you lose on a critical
issue and you think your argument may not be sufficiently specific,
try to upgrade that argument before it is too late. Sometimes a
good motion for rehearing will create the specificity you need.
See Waksman Enterprises, Inc. v. Oregon Properties, Inc.,
862 So. 2d 35 (Fla. 2d DCA 2003).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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