Tips to Not Lose An Appeal Before Getting To The Court of Appeals By Shannon Kilpatrick
I.
INTRODUCTION Your best chance at winning any appeal is to win the case at the trial court. Why?
Simple math. The Washington Appellate Practice Deskbook notes that about two-third of all appeals fail, the Court of Appeals reverses and modifies case outcomes in less than 30% of all civil appeals, and even the best appeal has only about a 50-50 chance. Why is that? There are several factors at play, including the different purposes of appellate courts. Appellate courts do not retry cases; they look for legal or structural errors affecting the fairness of the proceedings. As a result, the standard of review the appellate court uses is frequently very deferential to the trial court. Even if the trial court committed error, the appellate courts will also conduct the harmless error analysis before modifying a trial court decision. This is the appellate court’s way of saying “no harm, no foul.” There are other problems raised by an appeal, including the expense of an appeal and the delay caused to the case, both of which can be significant. It’s important to understand the Civil Rules (CR’s) and Rules of Appellate Procedure (RAP’s), as well as how appellate courts interpret them. That way you and your client can make informed decisions and understand the consequences of those decisions. Your ultimate goal is to try to avoid needing an appeal and ensuring the opposing party has nothing significant to complain about when you win. If you don’t have a working understanding of the procedural rules, you could be making mistakes that negatively affect your client’s case or chance of reversal. How Not To Lose An Appeal Before Getting to the Court of Appeals
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II.
KNOW THE RAPS The appellate process can sometimes feel foreign. It uses different procedures,
different rules, and different lingo. But the RAP’s require that certain things happen at the trial court or your client may lose the right to review of the substantive issues. There are numerous traps for the unwary. A.
Important RAP’s
While it is important to familiarize yourself with the RAP’s, here are a few key ones applicable to civil tort cases. 1. RAP 2.5(a)—Preservation of Error Under RAP 2.5(a), an “appellate court may refuse to review any claim of error which was not raised in the trial court.” This means if you do not object or otherwise address the issue with the trial court at the time the trial court has the opportunity to correct the error, the appellate court will almost certainly refuse to consider the substance of the issue. There are several reasons for the requirement of preserving error at the trial court. One is the requirement preserves judicial resources and judicial economy when the trial court is given the first opportunity to correct errors and avoid unnecessary appeals and retrials. In re Det. of Audett, 158 Wn.2d 712, 725-26, 147 P.3d 982 (2006). Second is fairness to the opposing party, who should have the opportunity to respond to claims of error and to shape their case in response to the trial court’s rulings on the respective issues. Id. Third is to reduce gamesmanship where a party purposely fails to object and “simply lie[s] back, not allowing the trial court to avoid the potential prejudice, gamble on the verdict, and then seek a new trial on appeal’” if the results of the verdict are not acceptable to that party. State v. Strine, 176 Wn.2d 742, 749, 293 How Not To Lose An Appeal Before Getting to the Court of Appeals
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P.3d 1177 (2013). Finally, fully developed issues and a complete record helps facilitates appellate review. Id. at 749-50. Other rules to be aware of are CR 46 and ER 103. CR 46 explicitly states that formal exceptions to a ruling or order are not necessary, but a party must have made known to the court the action that party would like court to take and why. If, however, the trial court does not give a party an opportunity at the time to object to the ruling or order, the absence of an objection should not count against a party. Under ER 103 evidentiary rulings are not error unless a substantial right of a party is affected and one of two things happens: (1) a timely objection is made with the specific grounds of objection explained, or (2) an offer of proof is made with the substance of the evidence a party would like admitted. 2. RAP 2.2 & 2.3 Title 2 of the RAP’s govern what is appealable as a matter of right vs. what is interlocutory in nature and the scope of review available. RAP 2.2 lays out what kinds of decisions are appealable. Along with a final judgment, there are a few others that could apply to one of your cases: •
RAP 2.2(a)(3)—a decision determining the action, which is a written decision affecting a substantial right that in effect determines the action and prevents final judgment or discontinues the action.
•
RAP 2.2(a)(9)—an order granting or denying a motion for new trial or amendment of judgment.
•
RAP 2.2(a)(10)—an order granting or denying a motion to vacate a judgment.
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•
RAP 2.2(a)(13)—a final order made after judgment that affects a substantial right.
RAP 2.3 governs discretionary review and could itself be the topic of its own CLE. 3. RAP 5.1 & 5.2 These RAP’s govern how and when to initiate review of a trial court decision and if these rules are not followed, it can spell doom for your client’s case. RAP 5.1 tells you what you have to do to initiate review. It also provides for the procedures for initiating cross review. RAP 5.1(d). RAP 5.2 provides the timing for filing a notice of appeal. A party must file its notice of appeal within 30 days after entry of the decision it wants reviewed or 30 days after entry of a decision on a timely CR 59 motion for reconsideration or new trial. RAP 5.2(a) & (e). The interplay between RAP 5.2 and CR 59 is important because by rule, an untimely motion for reconsideration does not toll the 30-day deadline. CR 59(b) requires a motion for reconsideration or new trial to be “be filed not later than 10 days after entry of the judgment, order, or other decision.” The appellate courts require strict compliance with this rule. A motion for reconsideration is only timely if it was both filed and served within 10 days. The Washington Supreme Court held as untimely a motion for reconsideration that was filed within 10 days but was served more than 10 days after the decision. Schaefco, Inc. v. Columbia River Gorge Comm'n, 121 Wn.2d 366, 368, 849 P.2d 1225 (1993). Similarly, the Court of Appeals held a motion for reconsideration filed 13 days after entry of the order was untimely. Diemond v. King Cnty, No. 81420-6-I, 2021 WL 3910280, 2021 Wash. App. LEXIS 2211, at *7 (Aug. 30, 2021) (unpublished). That How Not To Lose An Appeal Before Getting to the Court of Appeals
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finding of untimeliness resulted in an untimely notice of appeal, which meant the appellant in that case lost the right to appeal. Id. In addition, the 10-day deadline cannot be moved or changed. The appellate courts have held that trial courts have no authority to enlarge the time for filing a motion to reconsider a decision. Metz v. Sarandos, 91 Wn. App. 357, 360, 957 P.2d 795 (1998). In other words, you better calendar reminders and deadlines correctly. If there’s a question about the date of “entry” of an order, like if the order is dated the day before it’s officially filed, I would calendar the earlier date. Further, the 30-day deadline to file the notice of appeal in RAP 5.2 is also a hard deadline in practice. RAP 18.8(b) provides that the 30-day deadline to appeal will only be extended “in extraordinary circumstances and to prevent a gross miscarriage of justice.” The desire for finality will “ordinarily … outweigh[] the privilege of a litigant to obtain an extension of time.” RAP 18.8(b). That is an incredibly high bar to clear. For practical purposes, it means your client will almost certainly have no recourse if you file the notice of appeal beyond the 30-day deadline. 4. RAP 9.12 RAP 9.12 is a special rule for orders on summary judgment. Because the appellate court considers only evidence and issues considered by trial court, the appellate courts need to know what evidence and issues those were. Thus, the rule states the order on summary judgment “shall designate the documents and other evidence called to the attention of the trial court.” This is the reason orders on summary judgment always recite the documents considered by the court.
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5. RAP 18.17 While this rule is a little outside the bounds of this topic, you should be aware that last year the RAP’s governing the formatting of documents were amended. Instead of page limits, documents now have word limits, and the limits are different depending on the type of brief or motion you are filing. This rule also requires a new certificate of compliance at the end of the document above the signature line that is similar to the one required by King County Superior Court local rule. III.
SPECIFIC PRESERVATION OF ERROR ISSUES A party must articulate all objections and errors to the trial court judge at a time
the judge can fix the alleged error. The rules of error preservation do not require this to occur in a specific way or a specific form. So long as a party gave the court the opportunity to consider the argument, the error is preserved: With limited exceptions, the rule in Washington is that a litigant cannot remain silent as to claimed error during trial and later, for the first time, urge objections thereto on appeal. Where, however, the litigants have advanced the issue below, giving the trial court an opportunity to rule on relevant authority, and the court does so rule, it may not be necessary to object at the time of admission of the claimed erroneous evidence in order to preserve the issue for appeal. State v. Sullivan, 69 Wn. App. 167, 170, 847 P.2d 953 (1993). Further, a party who has made clear what its objections are and why is not required to continue to seek reconsideration: Where, as here, the issue was clearly before the trial court, and its prior rulings demonstrated that a motion to modify the order would not have been granted, a party cannot be reasonably held to have waived the right to assert the error on appeal merely by declining to engage in the useless act of repeating their arguments in a motion to amend the trial court's order. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 498-99, 933 P.2d 1036 (1997).
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B.
Motions in limine
One way to attempt to preserve error is the motion in limine. Motions in limine are useful because they have the judge address evidentiary issues prior to trial: The purpose of a motion in limine is to dispose of legal matters so counsel will not be forced to make comments in the presence of the jury which might prejudice his presentation. Unless the trial court indicates further objections are required when making its ruling, its decision is final, and the party losing the motion in limine has a standing objection. Sullivan, 69 Wn. App. 170-171 (internal quotations and citations omitted). The idea is that if judge rules evidence admissible that a party objected to in a motion in limine, that party is given a standing objection to it and is not forced to object at its introduction at trial. However, issues arise when the trial court does not rule or rules only tentatively. In those situations, a standing objection does not arise. State v. Roosma, 19 Wn. App. 2d 941, 948, 498 P.3d 59 (2021). The burden is then on the party objecting to the evidence to keep objecting when it is raised during trial or the party will have waived the error: When a trial court makes a ruling “subject to [the] evidence [to be] developed at trial, the parties are under a duty to raise the issue at the appropriate time with proper objections at trial.” The Supreme Court has held that the parties “are obligated to insure that a record of the ruling is made for appeal purposes.” “‘[W]hen a ruling on a motion in limine is tentative, any error in admitting or excluding evidence is waived unless the trial court is given an opportunity to reconsider its ruling’” when the evidence is submitted at trial. Roosma, 19 Wn. App. 2d at 949 (internal citations omitted). The pace of trial can lead to confusion about what the court explicitly ordered or not, so it is important to get a written order of the court’s rulings on motions in limine. When in doubt, object.
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Further, if a motion to exclude evidence is granted, and the opposing party attempts to introduce it anyway, your objection has not been preserved by the motion and you must object: A review of the authorities discloses that a standing objection to the introduction of evidence, thus preserving the issue for appeal, has been allowed only to the party losing the motion to exclude the evidence. Sullivan, 69 Wn. App. at 171. C.
Jury instructions
Procedures for objecting to jury instructions are in CR 51(f). CR 51(f) requires counsel to “make objections to the giving of any instruction and to the refusal to give a requested instruction.” Counsel “shall state distinctly the matter to which counsel objects and the grounds of counsel’s objection.” Id. A party must object to the failure to give an instruction, and a party unsatisfied with a particular instruction must propose an appropriate instruction. Goehle v. Fred Hutchinson Ctr., 100 Wn. App. 609, 614, 1 P.3d 579 (2000). These procedures are rooted in the same error preservation requirements as discussed above: The purpose of CR 51(f) is to assure that the trial court is sufficiently apprised of any alleged error in the instructions so that the court is afforded an opportunity to correct any mistakes before they are made and thus avoid the inefficiencies of a new trial. Id. at 615. The most important question to answer is whether the exception sufficiently apprised the trial court of the nature and substance of the objection. Id. If so, technical noncompliance may be excused where compliance with the purpose of the rule is established. Id. If an exception does not fairly apprise the judge of the points of law, “those points will not be considered on appeal.” Trueax v. Ernst Home Ctr., Inc., 124
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Wn.2d 334, 339, 878 P.2d 1208, 1211 (1994). And instructional errors “not brought with the attention of the trial court in some manner may not serve as the basis for a new trial.” Id. (emphasis in original). “Hypertechnicality is not required,” so long as the trial court understands why a party objects to an instruction. Millies v. LandAmerica Transnation, 185 Wn.2d 302, 310, 372 P.3d 111 (2016). Exceptions must be made to instructions not given as well as instruction proposed to be given. Those exceptions must be specific and identify with particularity what is being objected to and why. The explanation should be expansive and identify any key points of law, including statutes or cases that support your point. An accurate instruction must be proposed for any instruction a party objects to where the objection is to specific language. D.
Motions for new trial
Motions for new trial are something to consider after an unsuccessful trial. They can sometimes offer a better, quicker avenue of relief than an appeal. And for errors not previously raised, there may be a backstop if a lawyer fails to object to something that turns out to be important. A motion for new trial must be made in those cases: It is the general rule that in order to preserve error, counsel must call the alleged error to the court's attention at a time when the error can be corrected. While arguments against the admission of evidence should be advanced at the time the evidence is offered, a party is not necessarily precluded from raising the question on appeal if his counsel brought it to the court's attention on a motion for new trial. As the rule is stated in Seattle v. Harclaon, 56 Wn.2d 596, 354 P.2d 928 (1960), it is the duty of counsel to call to the court's attention, either during the trial or in a motion for a new trial, any error upon which appellate review may be predicated, in order to afford the court an opportunity to correct it.
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State v. Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975). A motion for a new trial then should preserve the error, though it does make for a much more uphill battle. This option should be a last resort. Attorney misconduct is also another area where a motion for new trial may be pursued. While lawyers must object to misconduct at the time it occurs, in narrow cases, that error preservation requirement may be excused: A timely objection is one of the requirements for a new trial based on attorney misconduct because it prevents parties from gambling on a favorable verdict before claiming error. The sole exception to the preservation of error requirement is “for misconduct so flagrant that no instruction can cure it.” Coogan v. Borg-Warner Morse Tec Inc., 197 Wn.2d 790, 808-09, 490 P.3d 200 (2021). IV.
STRATEGIES TO AVOID WAIVING ERRORS While trials are so fact specific and impossible to generalize about, here are a few
strategies I’ve used or seen used to help preserve errors. 1. Motions in limine, as discussed above. But keep in mind motions in limine should be about specific evidence, not about a “category” of evidence, such as “undisclosed evidence” or “opinions of lay witnesses.” 2. Pocket briefs for any unusual evidentiary or legal issues. Some of these can be prepared in advance. 3. Consider a written offer of proof in addition to an oral offer of proof if you lose. Include all deposition testimony, expert reports, witness disclosures of what witnesses will testify about, and anything else that might apprise the court of what evidence you want and the relevance of it.
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4. If you think a trial court hasn’t followed proper procedure in making a ruling at trial or you want to make sure important findings are accurately recorded, consider proposing a written order to clean things up. 5. File a motion for reconsideration to clean up the record or to make sure your arguments are clear and preserved. This is especially important if something new comes up at trial, a summary judgment hearing, or the like that not addressed in the briefs. New facts may be included into a motion for reconsideration of a summary judgment order: “In the context of summary judgment, unlike in a trial, there is no prejudice if the court considers additional facts on reconsideration.” August v. United States Bancorp., 146 Wn. App. 328, 347, 190 P.3d 86 (2008) (internal quotations and citations omitted). 6. If it isn’t in the record, it didn’t happen! Make sure anything that occurs off the record gets on the record at a later time.
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