Insight The Internal Appellate Alert

This article was originally published in the September 2020 Edition of The Advocate – the official publication of the Idaho State Bar. Online access to the original version of this article can be found via the Idaho State Bar’s website or via HeinOnline (login required).

Whenever you are drafting a motion to file with the district court, do you have an internal alert going off in the back of your head warning you about potential appellate issues that could arise? Should you? Idaho is a small state with a small bar, meaning that a lot of civil practitioners take a case from pleading to appeal. That being said, most cases never reach an appeal, and frankly, most motions or pleadings are not going to create appellate issues. So if you’re going to build an “appellate alert” in your brain, how and when should it be going off?

The authors of this article are an experienced trial attorney and an appellate attorney who have different perspectives as to the importance of events that occur at the trial court level, and have had many discussions about whether a particular act is necessary or helpful for the upcoming trial versus the possible appeal. This article utilizes a question and answer format to discuss how certain aspects of civil practice relate to trial and relate to a potential appeal. The goal is to help practitioners know not only why a particular motion or act is helpful for trial, but also how and why the appellate issue alert should be going off in their head. The discussion will cover specific practice tools, beginning with pleading and discovery, and will also address pre-trial motions, motions in limine, trial objections, and jury instructions.

Pleadings on appeal

Trudy: Pleadings, whether it be a complaint or answer, set up the entire case. As a defense attorney, learning the case well enough to develop a well-crafted answer lays the foundation for the defense. From my experience, though, it is rare that the pleadings themselves actually create appellate issues.

Stephen: I agree. Since the adoption of the notice pleading standard, it seems fairly rare to be able to have an appellate issue based on the pleadings. While the pleadings may set up claims for appeal, the pleadings themselves don’t usually make much of a difference on appeal. That being said, the procedural issues surrounding the pleadings always set off my internal sensor. I always look to see whether Complaint and Summons were properly filed, properly served, were timely, etc.

Essentially, I run through the 12(b) motions to see if any dispositive issues may arise, and if so, what appellate issues will be relevant. Though drafting an Answer rarely sets of any warnings in my head, I look at all possible motions I can file before I prepare an Answer. To the extent each of those has appellate repercussions, my internal alert is screaming at me.

Why discovery matters

Trudy: Discovery is essential for purposes of preparing for trial. However, like pleadings, I do not think that discovery really sets off any sort of internal appellate alarm in my head.

Stephen: I agree. Idaho has a relatively small amount of reported case law when it comes to discovery issues. I think the reason for this is that discovery is so broad that it is difficult to come up with an appellate issue.¹ Further, discovery motions, such as motions for protective order, motions to compel, and subpoenas, are often discretionary issues with the court, making them extremely difficult issues to appeal.²

Further, they are interlocutory orders which are not appealable during the case absent express permission from the Supreme Court, which can be hard to obtain. My experience is that if an appellate discovery issue is going to arise for discovery, you don’t typically need an internal alert to warn you about it. Either you are setting the issue up on purpose, or you are delving into such a specialized area that an appeal is likely. Examples of both have popped up in the medical malpractice arena.

For example, there was a recent string of cases all deciding the issue of discovery related to how the plaintiff’s out-of-area expert became familiar with the local standard of care.³ These cases were all so specialized and so narrow, that the appeals appear to be specifically set up. That is probably going to be true of most all discovery appeals that you may have.

Concerns for pre-trial motions

Trudy: An alarm probably should go off when filing pre-trial motions but I am seldom, if ever, filing the motions with the thought of appeal on my mind. We analyze whether they are appropriate and potentially successful, and if so, file them. If we lose, say a summary judgment, I announce to whomever that we can always appeal but, unfortunately, now I know this is not necessarily correct and what I should be saying is, “where’s Stephen?”

Stephen: My main goal is to make sure an issue is preserved for appeal. For example, if we lose summary judgment,⁴ I try to figure a way to preserve that issue, such as putting the issue into the requested jury instructions. If it is a motion to compel that we’ve lost, I analyze if it is an issue, we can permissively appeal.

If it is a motion in limine, I make sure that the appropriate objections are drafted and briefed for trial. Just because the district judge ruled on an issue, that does not mean the Supreme Court will address the issue. To me, the real goal of the internal appeals alert is to keep you on your toes about when an issue is preserved for appeal.

Benefits of motions in limine?

Trudy: For the trial lawyer, the impact of excluding unfavorable evidence by way of a motion in limine cannot be overstated. I think trial lawyers care a lot more about motions in limine than appellate lawyers do, because there are always facts or opinions each side would prefer the jury not hear and it is beneficial to try to exclude this type of evidence before the trial even starts. With every trial I learn the importance of taking the time, well before the trial, to carefully analyze the facts to figure out which facts or opinions we think the jury should not hear and figure out if we have a good faith legal basis (besides it being prejudicial to our case) to move for its exclusion.

It is also important to think beyond limiting certain facts or opinions and think outside the box as to what a party might say during trial. For example, in a trial we had this past February, one of our attorneys questioned why during discovery and at hearings we all called the Plaintiff a “whistleblower” or the case a “whistleblower case.” The term is merely a colloquialism we use as shorthand for an employee who discloses alleged wrongdoing by an employer. However, the case is still just an employment case.

The attorney then filed a motion in limine to prevent anyone, while the jury was present, to say the word “whistleblower” The motion was granted, and I am confident it shaped how the case moved forward at trial. Keep a list of the motions that were granted and that were denied. You will need them during trial.

Stephen: I agree that motions in limine are rarely helpful on appeal. A judge typically has three options in responding to a motion in limine: grant it, deny it, or reserve ruling until trial. However, unless there is a clear ruling on the admissibility of the evidence by the Court, any decision by the Court is not appealable.⁵ Without a clear ruling, the evidentiary objections must be raised again during trial in order for there to be any basis to appeal an evidentiary decision.⁶

This can be a confusing issue, as what often looks like a ruling that the evidence is admissible may, in fact, simply be an indication that further foundation needs to be laid at trial to determine admissibility.⁷ In other words, what too often looks like a ruling from a judge simply turns out to be a deferral of a ruling on the admissibility of the evidence. Further, since motions in limine deal with admissibility of evidence, the appellate standard is discretionary,⁸ meaning an appeal would only be effective if there was an abuse of discretion and prejudice,⁹ standards that are difficult to meet. Because of these issues, I rarely think about a motion in limine in terms of its appellate impact.

What about in-trial motions?

Trudy: If the opposing party tries to admit evidence that has been ruled on in a motion in limine, at times, I have responded with a motion for mistrial. If you have worked hard enough to get evidence excluded, it is obviously not good for your case and I try to use the Order to support the motion for mistrial.

I also usually try to move for a directed verdict, on a particular cause of action or specific damage claim, that I had previously tried to exclude in a summary judgment or motion in limine. The appellate lawyer is delighted, I get a sense of how the Judge perceives the evidence (I will take anything at this stage – see below), and, once in a while, we prevail. Very seldom do I move for a directed verdict on the entire case.

Stephen: To me, a motion for directed verdict can be a useful appellate tool. They are treated like summary judgment motions, which means all evidence is construed in favor of the non-moving party. However, they can be very useful for addressing legal issues which may not have been ripe for earlier ruling. For example, if a party could not get summary judgment on a statute of limitations defense earlier, a motion for directed verdict may be the best way to preserve that issue for appeal.¹⁰

During trial

Trudy: I am concerned about everything during trial. Trials are hard-fought competitions, made more difficult because the trial lawyers are never told the “score.” Day in and day out, (evidence in, evidence out) they have no idea, is their client winning or losing?

Outside of trials, most competitors, once out of no-score youth sports, know the “score” during a competition. The “score” factors into a competitor’s decisions (a golfer going onto the 18th hole with a five-stroke lead will play the hole differently than if down by one stroke). Not ever knowing if your client is ahead or behind during a trial leaves a trial lawyer no choice but to act as though his/her client is behind.

This requires the lawyer to go through every day of trial focused on doing absolutely everything possible to try to get his/her client ahead and then finish every day assuming the client is losing and starting over the next day. (And jurors and Judges wonder why we ask the same question 10 different times.) So, all I know is during trial, figuring out possible appellate issues is at the very bottom of my list!

Stephen: My biggest concern is that objections are made to preserve issues for appeal. Unless there is a pre-trial order which is sufficiently final to preserve an issue for appeal, the only way I have anything to appeal is if an objection is made at trial. If a sufficient record is not made, I can’t do much after the fact. As the Idaho Supreme Court once pointed out, trial counsel is not allowed to sit like a potted plant and expect to have issues preserved for appeal.

Objections to testimony

Trudy: This is kind of the big one, isn’t it? There is almost nothing worse than being in the middle of a trial and some highly prejudicial fact comes into evidence and I fail to object. Failing to timely object usually happens when opposing counsel goes into an area of questioning that you have not anticipated and, at first, appears quite harmless.

Also, a missed objection can come after what you thought was a harmless question is followed by a devasting answer. Making the correct objection at the correct time is easy in a lot of circumstances that you can anticipate, but also can be more difficult than you appellate lawyers realize!

Also, objecting is a double-edged sword. If I miss an objection, any appellate issue is waived. If I object too much, the jury is probably going to think that I’m hiding something.¹¹ “Seasoned trial lawyers know that objecting in the presence of a jury may serve only to highlight the evidence in question.”¹² As an example, I had a trial where opposing counsel kept asking questions which danced around (and occasionally directly involved) previously excluded evidence.

The jury must have been excused eight or 10 times after my objections. I won most of the objections, but ultimately think that, based on juror interviews, the numerous objections made the jury question not only the strength of our case but also wonder what we were trying to hide from them. Having them leave the courtroom after almost every objection also seemed to add a layer of drama that may have impacted their view.

Stephen: I agree and disagree with you. I agree that objecting more than necessary is probably not helpful, but even so, I cannot do anything on appeal if there is no objection. So for purposes of keeping an appellate mindset, I have to disagree that objections should be a calculated matter.

Anyone who has seen me in an evidentiary hearing knows that, if needed, I object to everything. I once had an evidentiary objection on a preliminary injunction where I objected to every piece of evidence submitted, even though there was only one that I truly needed to keep out. My client asked me, sotto voce, if I usually lose so many objections. But I managed to keep out the one essential piece of evidence, so even though I looked a bit foolish, I kept out what I needed to keep out.¹³

Trudy: This is why you are our appellate lawyer.

Stephen: So, considering that if there is no objection, there is a waiver and there is no possibility of appealing, what methods are there to strike a balance?

Trudy: A lot of the objections can be anticipated and planned for before the trial begins. Parties are required to disclose witness lists and exhibit lists well in advance of trial.¹⁴ Once we know what is going to be submitted, we start to plan our objections.

Specifically, the following can be done in advance of trial: (1) For exhibits, an objection can be prepared for each questionable exhibit, and summaries of cases may be prepared to support the objection. If the Judge has already ruled at the hearing on the motions in limine, have the Order ready to provide to the Judge; (2) For witnesses, if they have been deposed, their testimony is pretty much known. The depositions can be reviewed, and again summaries of objections can be prepared in advance. When questioning enters an objectionable area, the objections can almost just be read out loud from the pre-prepared memos; (3) For expert witnesses, summarize their disclosures and depositions into discrete opinions so that if an expert tries to opine outside of the disclosed opinions, objections can be made. If the disclosures have not been made available to the Court in advance of trial, then having copies of the disclosures available is necessary to inform the Court of why the proposed testimony is objectionable; and (4) Also, if the expert’s qualifications are questionable, be ready to object the instant the first question regarding opinion is asked.

The flip side is necessary too. When we have important evidence which we know will be objected to, we spend hours before trial figuring how to get it into evidence. One example is impeachment evidence. Idaho courts have set severe limits on utilizing impeachment exhibits at trial.¹⁵

For example, we once had impeachment evidence which had not previously been disclosed,¹⁶ which was a video of a woman climbing stairs without a handrail (which she testified in her deposition that she absolutely could not do). We came up with multiple methods of trying to get the video into evidence, and as a result of the preparation, one of the methods worked and we were able to impeach the plaintiff’s testimony.

Why jury instructions matter

Trudy: Usually, it is impossible to know exactly what the instructions are going to be until the end of the evidence.¹⁷ However, from the time I look at the Complaint, I try to have an idea as what they are likely to be. In negligence cases I read the proximate cause instruction at the very beginning of the case because that helps with preparing the defense and especially preparing for trial.

Once jury instructions are set, I use jury instructions in closing arguments. Hopefully, the evidence we put on will be consistent with the jury instructions so that we can explain to the jury how to apply the facts to the law. It is helpful to incorporate the instructions into closing, but it can be challenging as you oftentimes do not know until just hours before closing if you ended up getting good or bad instructions for your case.

Even though appeal is even less on my mind at this stage, I do know that if instructions we want or need are not given, I must object. If I do not believe the instructions being given are proper, I must object. Objecting in the jury instruction conference, off the record, does not satisfy this requirement.

Stephen: Jury instructions are incredibly helpful for appellate purposes, and I always have an appeal in mind. They are the law of the case that the jury is going to apply to the facts. They need to accurately state the law, or a new trial is a strong possibility. They are also a fantastic place to preserve issues for appeal that you may not have been able to preserve before.

For example, if you lost a motion for summary judgment, include every issue from the summary judgment in the jury instructions. Even if I’m not going to be involved in a trial, I try to involve myself in drafting jury instructions so that I can help address any issues I think we may need to appeal. I also try to help review proposed jury instructions from the opposing party so that we can formulate objections to jury instructions (either in briefing or for the jury instructions conference) to make the necessary record.¹⁸

My biggest concern with jury instructions is that the appellate court might apply the “invited error”¹⁹ doctrine or say that no record of objection was made, so I try to spend a significant amount of time on jury instructions.

Wrapping up

It’s clear that preparing for a trial and preparing for an appeal require different mindsets. However, practicing attorneys should always have an internal appellate alert ready to help the attorney understand both what issues will be on appeal, and also recognizing how to preserve an issue for appeal. Having that in the back of your head could make appeals much more likely to be successful.

Endnotes

1. See I.R.C.P. 26(b)(1)(A).
2. Jen-Rath Co. v. Kit Mfg. Co., 137 Idaho 330, 336, 48 P.3d 659, 665 (2002) (“Control of discovery is within the discretion of the trial court.”); McCann v. McCann, 152 Idaho 809, 821, 275 P.3d 824, 836 (2012) (protective orders are discretionary); Nightengale v. Timmel, 151 Idaho 347, 351, 256 P.3d 755, 759 (2011) (motions to compel lie within the district court’s discretion).
3. See Bybee v. Gorman, 157 Idaho 169, 179, 335 P.3d 14, 24 (2014) (fn.8); Quigley v. Kemp, 162 Idaho 408, 411, 398 P.3d 141, 144 (2017); Phillips v. E. Idaho Health Servs., 166 Idaho 731, 463 P.3d 365, 379 (2020), reh’g denied (May 29, 2020).
4. “Idaho strictly adheres to the rule precluding appellate review of a district court’s denial of summary judgment where the case has gone through to the finder of fact.” Hennefer v. Blaine Cty. Sch. Dist., 158 Idaho 242, 249, 346 P.3d 259, 266 (2015).
5. Kirk v. Ford Motor Co., 141 Idaho 697, 702, 116 P.3d 27, 32 (2005); Davidson v. Beco Corp., 112 Idaho 560, 563, 733 P.2d 781, 784 (Ct. App. 1986) (overruled on other grounds by Davidson v. Beco Corp., 114 Idaho 107, 753 P.2d 1253 (1987)).
6. Lanham v. Idaho Power Co., 130 Idaho 486, 492, 943 P.2d 912, 918 (1997).
7. See Ackerschott v. Mountain View Hosp., LLC, 166 Idaho 223, 457 P.3d 875, 887 (2020) (a pre-trial ruling allowing an expert to testify was deemed to be a ruling that additional foundation needed to be laid to determine whether the expert’s testimony was admissible); Lanham v. Idaho Power Co., 130 Idaho 486, 492, 943 P.2d 912, 918 (1997) (same); State v. Hester, 114 Idaho 688, 700, 760 P.2d 27, 39 (1988).
8. Puckett v. Verska, 144 Idaho 161, 167, 158 P.3d 937, 943 (2007).
9. Brauner v. AHC of Boise, LLC, 459 P.3d 1246, 1257 (Idaho 2020), reh’g denied (Apr. 3, 2020).
10. Denied summary judgments usually may not be appealed. Hennefer v. Blaine Cty. Sch. Dist., 158 Idaho 242, 249, 346 P.3d 259, 266 (2015).
11. A motion in limine, “avoids juror bias occasionally generated by objections to evidence during trial.” Davidson v. Beco Corp., 112 Idaho 560, 563, 733 P.2d 781, 784 (Ct. App. 1986).
12. Davidson v. Beco Corp., 112 Idaho 560, 564, 733 P.2d 781, 785 (Ct. App. 1986).
13. I admit, I lost the case on appeal, but luckily it had nothing to do with the evidentiary issues occurring during the hearing. See Hillside Landscape Const., Inc. v. City of Lewiston, 151 Idaho 749, 264 P.3d 388 (2011).
14. I.R.C.P. 16(a)(2).
15. See Perry v. Magic Valley Reg’l Med. Ctr., 134 Idaho 46, 52-53, 995 P.2d 816, 822-23 (2000).
16. Under I.R.C.P. 16(d), the Court cannot order disclosure of impeachment evidence. This ostensibly means it is not discoverable.
17. I.R.C.P. 51(i).
18. I.R.C.P. 51(i)(3).
19. State v. Blake, 133 Idaho 237, 239-40, 985 P.2d 117, 119-20 (1999); McBride v. Ford Motor Co., 105 Idaho 753, 762, 673 P.2d 55, 64 (1983); Anderson v. Gailey, 97 Idaho 813, 823, 555 P.2d 144, 154 (1976).

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