There is a reason that major trials today almost always involve appellate lawyers on both sides. The best trial lawyers in America recognize the value an appellate lawyer adds to the trial team—and the danger inherent in proceeding without one.
Unfortunately, too many clients remain reluctant to incur the costs associated with having an appellate lawyer attend the trial. These clients don’t understand the return they will receive on their investment. This is unfortunate, as appellate lawyers add substantial value to a trial team. Three of the most important ways an appellate lawyer can change the course of a trial are through preparation of the jury charge, advice on the admission and exclusion of evidence, and preservation of error for appeal.
Preparation of the jury charge is critical to trial success. After all, the case will be decided based on the jury’s answers to questions contained in the charge. And an incorrect charge can be disastrous. Absent objection by the party seeking appellate review, the appellate court will measure the sufficiency of the evidence against the charge as presented to the jury—even if it misstates the law or effectively increases a party’s burden of proof beyond that imposed by law. See Romero v. KPH Consolidations, Inc., 166 S.W.3d 212, 220-21 (Tex. 2005) (citations omitted).
Moreover, many lawyers fail to grasp the potential for what is known as “Casteel error.” This occurs when a jury question commingles valid and invalid theories of liability. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000). It also can apply to a damages question that contains an invalid element of damage. Harris County v. Smith, 96 S.W.3d 230 (Tex. 2002). Imagine the frustration of being a plaintiff and winning big at trial, only to see it all taken away on appeal due to the dreaded Casteel error. Paying an appellate lawyer to assist in preparation of the charge can be the difference between winning and losing—or preserving a win or challenging a loss on appeal.
An appellate lawyer also can play a pivotal role in preserving error. Often, the trial lawyer is so caught up in the trial issues that an important preservation issue may float by unseen. Of course, most lawyers know the basics of error preservation. But often, lawyers believe a “general” complaint about sufficiency of the evidence will preserve any sufficiency complaint for appellate review. Actually, the “complaint on appeal must be the same as that presented to the trial court.” In re Y.M.A., 111 S.W.3d 790, 791 (Tex. App.—Fort Worth 2003, no pet.) (citations omitted). This rule holds true for a challenge to the sufficiency of the evidence. See, e.g., Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 151 (Tex. App.—Amarillo 2001, no pet.). A mistake can end the appeal before it begins, as a party’s failure to preserve error waives appellate review. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).
Finally, an appellate lawyer can assist with complex evidentiary issues that might otherwise escape the trial lawyer’s attention. For example, trial lawyers often rely on what are known as “judicial admissions” at trial. Yet many lawyers do not realize that a “party relying on an admission must protect it by objecting to the introduction of evidence contrary to the admission of fact and by objecting to the submission of any issue bearing on the fact or facts admitted.” Hurlbut v. Gulf Atlantic Life Ins. Co., 749 S.W.2d 762, 765 (Tex. 1987) (citing Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983)). Permitting such testimony or submission without objection waives reliance on the admission on appeal. Id.
Similarly, most lawyers know that issues must be supported by the pleadings. Yet often, they fail to object to the presentation of evidence relating to such issues. This can result in what is known as “trial by consent.” And it can waive any error associated with submission of the issue to the jury. On the other hand, a proper objection generally precludes trial by consent. Webb v. Glenbrook Owners Ass’n, Inc., 298 S.W.3d 374 (Tex. App.—Dallas 2009, no pet.).
For all of these reasons (and many others), litigants should consider retention of an appellate specialist at trial an investment—not an expense.