Metropolitan News-Enterprise
Thursday, October 12, 2000
Page 6

Federal Courts / Evidence

Take Your Evidence to the Appeals Court


The writer is a partner at Sidley & Austin in Los Angeles.

It's your worst nightmare as a defense lawyer. The jury has just come in with a huge verdict against your biggest client. You're depressed. You're angry. You want to quit the practice of law. Then reality sets in. You must save this client. You are certain an injustice was done. You're determined to turn it around on appeal. But how can it be done?

A similar question from quite a different perspective is bothering your adversary on the other side of the courtroom. She is thrilled with the jury's result. But she cannot help but be concerned about it slipping away on appeal. The judge made several controversial evidentiary rulings. Some seemed, and seem, critical to the outcome of the case. You ponder whether any of these will allow you to salvage your pride and your client. Your adversary is trying to figure out what to do to prevent it.

Figuring out which of you has more reason for concern, and hope, requires an understanding of the process by which appellate courts review evidentiary issues. At bottom, the task is not a difficult one. The substantive law of evidence varies widely from jurisdiction to jurisdiction. But appellate review of evidence works about the same way in almost all cases. For virtually any evidentiary issue on appeal, there are three, and only three, issues you will need to analyze and brief. But these three issues present a host of problems and many traps for the unwary.

What are these issues that hold the keys to your future?

First did you properly preserve the evidentiary issue in the trial court?

Second — what standard of review applies to your issue or, as is often the case, what standards apply to the several components of your issue?

Third — was the error prejudicial or harmless?

Even experienced appellate counsel frequently overlook one or more of these issues, most often the standard or standards of review. It pays to focus methodically on each of these issues as you prepare your appeal, regardless of whether you are attacking or defending. In particular, you must identify and argue to the correct standard of review to maximize your chances on appeal.

First, the bad news for losing counsel. Your fate on appeal is in part already sealed by what happened in the trial court. Get rid of the popular misconception that appellate review permits you, as the losing party, to present your entire case for a second time. Rather, appellate review is about whether the trial court committed one or more specific errors. If so, were they of sufficient magnitude to warrant reversal?

This has important consequences. Most immediately, you cannot have waited until the appeal to litigate issues that should have been the subject of an objection at trial. You must have made your record in the trial court. Some appellate courts, such as the Ninth Circuit, will even require you to specify in your brief exactly where the issue presented on appeal was preserved below by making a proper objection before the trial court.

Preserving the Record

If you failed to preserve the trial record, you are likely facing a second disaster with your client. If you did not object at trial, the appellate court may well deem the supposed evidentiary error as simply "waived." At best--though hardly "best"--the court will address the merits under a "plain error" standard of review. This will require you to establish that the error materially affected the result of the trial. You are still alive, but your situation is far from desirable.

Why do appellate courts strictly enforce the requirement that counsel provide the trial court with the specific basis for an objection? For several reasons. Perhaps the most important is to provide the trial court with an opportunity to correct the error at the time it occurs. Trial, not the appeal, should be the "main event" in litigation.

There is also an institutional unfairness and inefficiency in allowing an appellate court to reverse a trial court if trial counsel never explained the basis of its objection at the time it was made, or perhaps stood mute as the evidence came racing in. Trial judges are not and should not be required to gaze into their crystal balls to determine counsel's thought process and the unexplained basis for the objection. Finally, by requiring a specific objection, the courts ensure that trial counsel will not receive a windfall if, in the interval between trial and appeal, he is able to formulate a basis for the objection and present it for the first time to the appellate court.

How do you do it? Have you done it? The answer depends on the nature of the particular issue. At least one of the following, which are the most common ways of preserving the record, should be available to you:

1. You objected to the introduction of evidence at the time it was admitted;

2. You objected to the exclusion of evidence at the time it was excluded;

3. You moved to strike evidence from the record if it was improperly admitted;

4. You provided the court with an offer of proof supporting your argument if the court excluded certain evidence.

Assume, for example, that your adversary's witness testified about inadmissible hearsay statements. You could have preserved the record by making an objection on the basis of hearsay. You were not required to embark upon a lengthy explanation of the hearsay rule and should have avoided doing so. But you also cannot have merely objected without specifically informing the court of the particular basis for the objection. "Objection, hearsay" will do it. Then move to strike any testimony admitted after the objection.

What do you do if you are the victim of an objection sustained by the trial court on testimony critical to your case? The answer is an "offer of proof." When making the offer of proof, either explain to the court why the testimony is not hearsay, or if it is, set forth the specific exception to the hearsay rule and its application to the testimony at issue. The offer of proof should be made either at a sidebar conference or at a hearing outside the presence of the jury, depending on the length of time required. Even if you are unable to convince the trial judge that the testimony should be permitted by making the offer of proof, at least you will have properly preserved the trial record for appeal. Keep in mind, though, that offers of proof do have a tendency to interrupt the flow of a trial and may frustrate both the court and the jury. Use them sparingly to avoid being held responsible for prolonging the trial unnecessarily.

Let's say you or other trial counsel failed to properly object or otherwise assert error before the trial court. Are you finished? The court has discretion to decide if that issue is deemed "waived" and not entitled to appellate review. But the rule regarding waiver of issues on appeal is not jurisdictional. The appellate court can, and under the right circumstances will, consider whether waiver is appropriate.

The outcome will probably depend upon whether the issue is factual or legal in nature. For example, if the issue on appeal concerns a factual matter, such as a witness' testimony, the appellate court's willingness to apply the waiver doctrine depends principally upon the significance of the testimony for the trial as a whole. Follow this rule: The more significant the testimony, the more reluctant the court will be to apply the waiver rule. The best guarantee of success is for you to demonstrate persuasively that the testimony at issue is critical in the context of the entire trial. As should be obvious, this determination requires that the court conduct some kind of inquiry into the merits of the issue. In this sense, the concept of waiver is somewhat of a misnomer.

If you convince the court that the witness' testimony was significant, the court might exercise its discretion and consider the factual question on appeal, even though no objection was made at trial. But you are still not out of the woods. Because there was no objection at trial, the appellate court will probably apply the "plain error" test to determine if reversible error occurred. Plain error is not easy to come by. You must convince the appellate court that the error was highly prejudicial, and that there is a high probability that the error materially affected the outcome of the trial. This imposes a much heavier burden than you would face with the "clearly erroneous" test, which is the standard that would have been applied if trial counsel had objected to the testimony.

So much for "factual" issues. What happens if the issue raised for the first time on appeal is a pure question of law? Did the insurance company have a duty to defend? In such a case, the court may, but is not required to, exercise its discretion and resolve the issue. Will it do so? It depends on several factors, including:

1. Does the resolution of the legal issue require the development of a factual record in the trial court?

2. If the issue requires a factual record, has the record been adequately developed to permit meaningful review?

3. Would the resolution of the issue result in prejudice to the party against whom the issue is raised?

An appellate court will exercise its discretion and resolve the legal issue only if the record is either adequately developed or is unnecessary to the resolution of the issue. The opposing party also must not be prejudiced. Prejudice would exist, for example, if the party would have presented its case differently had the legal issue asserted on appeal been raised before the trial court.

All of this adds up to one fundamental conclusion. The conduct of trial counsel is critical to the success of securing a favorable result on appeal. Objections are critical. They must be timely and specific. And, offers of proof are invaluable and sometimes essential. If you have not performed these tasks at trial, your chances on appeal cannot be rated very high. The first rule for success on appeal, then, is: preserve the trial record.

On the other hand, suppose that you have taken care of business as a trial lawyer. You have carefully preserved your record. Your objections are crisp and clear. The judge's rulings are apparent. You have made your offers of proof. You can now turn your attention to the real task at hand: persuading the reviewing court that the trial court's rulings were erroneous.

Missteps are all too common at this point too, and usually for a single reason. As trial counsel, you have preserved the record, and, as appellate counsel, you are prepared to show the palpable defect in the trial court's reasoning. But have you asked what the proper question is on appeal? Have you stopped to consider what the standard of review will be? How much deference will the appellate court give to the trial courts decision? If you do not consider this question, you will never frame your arguments in light of the real issue on the appellate court's mind.

The phrase most commonly sounded in this context is "abuse of discretion." Rogers v. Raymark Indus., Inc., 922 F.2d 1426, 1429 (9th Cir. 1991). Trial courts have "wide latitude" in making decisions to admit or exclude evidence, and their decisions are ordinarily reviewable, it is said, if they abuse the discretion that this implies. Kenekoa v. City of Honolulu, 879 F.2d 607, 613 (9th Cir. 1989). It is important, however, to understand where this general statement comes from, for it applies less frequently than many counsel realize.

In reality, the standard of review turns in the first instance on whether the underlying evidentiary issue is one of fact or of law. If the underlying issue is purely legal, such as the proper construction of a rule of evidence, review is de novo. This is the least deferential standard, the one most favorable for the appealing party. U.S. v. Manning, 56 F.3d 1188, 1188 (9th Cir. 1995). On the other hand, if the issue is purely factual, review is for clear error. Here the responding party is in full control, with a standard of review most conducive to defeating an appeal. U.S. v. Ford, 21 F.3d 759, 763 (7th Cir. 1994). Between the two extremes are the cases requiring discretionary determinations on whether a particular piece of evidence should have been admitted. These include assessments of the probative value (relevance and reliability) of the evidence versus the danger of unfair prejudice, confusion of issues, misleading the jury, and needless presentation of cumulative evidence on the other.

Hence, the "abuse of discretion" standard. Because the majority of evidentiary issues on appeal fall into the discretionary category, some counsel and courts tend to think automatically in terms of "abuse of discretion." In precise terms, though, the standard applicable to many issues encompassed by the trial court's rulings may be either far less or far more deferential.

This has important implications for you when you are formulating arguments or writing any portion of your brief. Consider carefully whether, based on the record below, the true basis of the trial court's ruling is legal or factual or must be admitted to be in the middle ground described as discretionary. Seize the opportunity to gain an advantage by framing the issue on appeal in a way that will trigger the standard of review you want. You may win your appeal just by being more discerning than your counterpart.

How does all this work? Some legal questions are easy to spot. Suppose the trial court's ruling rests simply on the construction of an evidence rule. The standard of review appears to be straightforward. The appellate court will not defer to, but will independently evaluate, the trial court's construction of the rule.

But there is more than one kind of construction issue, any of which will give rise to the de novo standard. One is the question of which evidence rule applies. Examples are whether the evidence is "other acts" evidence subject to the requirements of Fed. R. Evid. 404(b), hearsay (subject to the appropriate limitations and exceptions), expert testimony subject to Rule 701, or documentary or demonstrative evidence subject to the requirements of Fed. R. Evid. 901 and those following.

Arguing Evidentiary Rulings

To bring this issue to the reviewing court's attention, you must argue that the evidence does not fit within the rule under which the trial court analyzed it. For example, suppose the trial court excluded testimony on the ground that it is hearsay not within a recognized exception. Your argument should be that, as a matter of law, the testimony was not hearsay. It was not offered to prove the truth of the matter asserted, or perhaps it was "not hearsay" as defined in Rule 801.

But there is another kind of construction issue: the proper interpretation of the legal requirements of the applicable rules. Here, you must identify the requirement and show how the trial court overlooked or misapplied it.

Suppose, for example, that the trial court has admitted, under Fed. R. Evid. 404(b), a party's prior misconduct to prove intention to commit the act for which he is being sued. In support of its ruling, the trial court has concluded that all the requirements of Rule 404(b) have been met. There is sufficient evidence that the prior act occurred, it is offered to prove a material element of the present cause of action, and the prior act is sufficiently similar to the conduct alleged at trial. But the trial court's consideration of the elements has fallen one short. You should emphasize that Rule 404(b) contains an additional requirement that the prior act not be too remote in time. The trial court has committed an error of law in overlooking this requirement. American Home Assurance Co. v. American President, Ltd., 44 F.3d 774, 779 (9th Cir. 1994).

Use a similar approach if you want to challenge the exclusion of evidence. Identify a requirement for admission not specified in the rule but nevertheless imposed by the trial court. For example, suppose the trial court has excluded a business owner's personal diary as hearsay. The diary, she said, cannot fit within the business record exception because it is not a commercial record maintained by someone under a duty to do so. Personal records can fit within the business records exception, however, so long as they are systematically checked and regularly and continually maintained. If you put in evidence during the trial that the business owner did these things, then the diary qualified under Fed. R. Evid. 306(6). Keogh v. C.I.R.. 713 F.2d 496, 499 (9th Cir. 1983). You are entitled to de novo review to correct the trial court's error of construction.

Bear in mind that de novo review does not mean reversal. In either of the above situations, the appellate court will not overturn the ruling on the basis of an error in construction if it can find another basis in the record to affirm. See, e.g., American Home Assurance Co., 44 F.3d at 779. You must show that the trial court's ruling would have been different under the correct construction of the rule. If you are challenging the admission of evidence, you must show that the requirement for admission ignored or misapplied by the trial court was not met. In the Rule 404(b) example, the prior conduct must in fact have been too remote in time to have been admitted under the rule.

If you are challenging the exclusion of evidence, you must show that the correct construction of the rule would not have resulted in the evidence being properly excluded for some other reason. This would include a showing that the required preliminary facts were not established, or perhaps that the trial court would have exercised its discretionary power. In the above Rule 806(6) example, the record evidence must show that the personal diary was systematically checked and regularly and continually maintained. This type of showing may not be available if the trial court rested its decision exclusively on its construction of a rule, and did not reach any other issues. In occasional cases, a limited remand for further development of the record may be required.

Factual and Discretionary Issues

Note that even where the primary ground for appeal is the construction of a rule, the factual and discretionary issues may surface as well. Such factual and discretionary determinations pose real obstacles to the appealing party. More than a few courts have avoided the construction problem entirely by applying these default principles.

Factual determinations affecting evidence frequently pose thorny problems on appeal. Are there foundational facts that the proponent had to establish by a preponderance of the evidence before the trial court could exercise any discretion to admit the evidence? Examples of such facts include whether a declarant was conscious of imminent death, as required under the dying declaration exception to the hearsay rule, Herrera v. Collins, 904 F.2d 944, 949 (5th Cir. 1990); whether a conspiracy existed, as required under the coconspirator exception to the hearsay rule, Stauffacher v. Bennett, 969 F.2d 455, 459 (7th Cir. 1992); and whether a witness possessed the qualifications to be classified as an "expert" within the meaning of Fed. R. Evid, 702, Cook v. American Steamship Co., 53 F.3d 733 (6th Cir. 1995).

Ordinarily, the trial court's findings on these facts are reviewable only for clear error, Fed. R. Evid. 104(a); Cook, 53 F3d 733. In some cases, however, you may be able to redefine these factual questions as a legal issue. If issues are properly presented to the appellate court, you may be able to gain much closer scrutiny and a possible reversal of the trial court's decision.

One way to turn a factual issue into a legal one is to argue that the trial court has misconceived the preliminary facts that must be shown under the applicable rule. Suppose the trial court admits a hearsay statement under the dying declaration exception, finding only that the declarant was conscious of imminent death. The appellant should point out the additional preliminary finding required under Fed. R. Evid. 804(b)(2)-that the declarant believed there was no reasonable chance of recovery, Herrera, 904 F.2d at 949. Your appeal stands a better chance if you emphasize that the trial court erred as a matter of law in failing to make this finding.

Suppose, on the other hand, that the trial court excluded the dying declaration. The declarant was conscious of imminent death and believed there was no reasonable chance of recovery, but did not die. The court held that the dying declaration exception did not apply. Because this is not a preliminary fact required by Rule 804(b)(2), you can argue that the court's error was a legal one, entitling you to tougher review of the record below.

A second legal issue that may lurk beneath an apparent factual question is whether the trial court applied too high or too low a burden of proof for the preliminary fact. If the trial court, for example, required only a prima facie showing of a conspiracy-enough evidence that a reasonable factfinder could find a conspiracy existed-you should emphasize to the appellate court that the correct burden is preponderance of the evidence, Stauffacher, 969 F.2d at 459. The trial court committed not a factfinding, but a legal error.

So far, so good. But again, your job is not complete until you also show that the error of law infected the court's ruling. If challenging the admission of evidence, you must still show that the preliminary facts required under the rule were, under the correct burden of proof, not established. To challenge the exclusion of evidence, you must show that all required preliminary facts were established. As a result, the evidence could not properly have been excluded under the court's discretionary power.

Outside this relatively controlled world of legal and factual determinations is the great universe of discretionary conclusions. It is tempting to describe this as the great catch-all, a none-of-the-above category. It includes all of those determinations that must be made after the legal and preliminary factual requirements are met. Probative value versus prejudicial effect. The phrase is familiar to all trial lawyers. It is critical on appeal. Examples include whether otherwise admissible "other acts" evidence is sufficiently probative to justify admission, whether otherwise admissible expert testimony will assist the trier of fact, and whether otherwise admissible hearsay is sufficiently reliable to go to the jury.

The trial court has wide latitude to make these discretionary determinations. The reason is its familiarity with the facts of the case and its opportunity to evaluate first-hand the quality of the evidence presented. It's hard to beat. But don't give up too soon. As in the case of preliminary factual conclusions, seeming cases of discretion often raise legal issues. Two such issues are particularly common and, if properly emphasized to the appellate court, can trigger de novo review of an otherwise discretionary ruling.

The first of these issues is whether the district court has exercised any discretion at all. In some instances, the district court is simply wrong in believing that its decision is required under a rule. When this happens, the appellate court will not treat the decision as if it were discretionary. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir. 1993).

Suppose, for example, that the trial court finds the requirements of Rule 404(b) are met. There is sufficient evidence that the prior act occurred, the prior act was offered to prove a material element, and the prior act was sufficiently similar to the alleged conduct in the present case. On the basis of these findings, the court concludes the prior act must be admitted. In challenging the ruling, you should argue for de novo review on the ground that the trial court has failed to exercise any discretion to weigh the probative value of the evidence against the danger of unfair prejudice.

Discerning whether the trial court has exercised its discretion is often complicated by the trial court's failure to state thoroughly the rationale for its ruling. Perhaps trial counsel failed to ask for a statement. Ambiguity in the record makes your job more difficult on appeal but, at the same time, creates an opportunity. Each party has a shot at shaping the standard of review in its favor. Look for such opportunities; they may make the difference between success and failure-especially where the appellate court disagrees with the trial court's ruling on the merits.

The second legal issue sometimes hiding in a seemingly discretionary ruling is whether the trial court, in making a discretionary determination, has relied upon improper factors or has failed to consider factors that must be considered. Suppose the trial court exercises its discretion to exclude expert testimony on the ground that the expert has based his opinion on materials not reasonably relied upon by other experts in the same field. But the court conducts no inquiry into what experts in the field actually rely on. Instead, the judge considers whether the materials are within the expert's immediate field of expertise; whether the materials, in the court's own view, are reliable; and the extent to which the expert acknowledges the flaws in those materials when testifying. See In re Japanese Electronic Products Antitrust Litigation, 728 F.2d 238, 277 (3d Cir. 1983). You should point out that the trial judge has erred as a matter of law in considering several improper factors and failing to seriously consider the one factor-what experts in the field actually do-that should have guided her inquiry.

Again, this is not enough to win on appeal. You still must show that the ruling would have been different had the trial court properly exercised its discretion. If the appellate court can, based on the findings and evidence in the record, independently resolve the discretionary question, it may do so. Rahm, 933 F.2d at 1412, 1414. If, however, the record contains insufficient information to allow an independent determination, the court may be forced to remand for further development of the record.

Standard of Review

In sum, simply arguing that the trial court was right or wrong is the shortest path to failure. Instead, frame your arguments in light of the standard of review. Keep the following rules in mind:

1. Appellate review focuses on legal errors, not factual disputes. Therefore, wherever possible, frame challenges to evidentiary rulings in terms of legal issues.

2. Where the trial court's ruling appears to rest on its construction of an evidence rule, try to identify either a requirement for admission overlooked by the trial court or a requirement for admission not specified in the rule but nevertheless imposed by the trial court. Also look for those relatively rare cases where the trial court has analyzed the evidence under the wrong rule entirely.

3. Where the trial court's ruling rests on findings of preliminary fact, try to frame the challenge to those findings in terms of a legal issue such as whether the trial court has misconceived what preliminary facts must he shown or imposed the wrong burden of proof for those preliminary facts.

4. Where the trial court's ruling rests on a discretionary determination of the probative value versus the prejudicial impact of evidence, try to rest the challenge on a legal ground such as the trial court's failure to exercise its discretion or the trial court's reliance on improper factors.

5. Where it is unclear whether the basis for the trial court's ruling is legal, factual, or discretionary, seize the opportunity created by the ambiguity to characterize the trial court's rationale in a way that will trigger the standard of review you want.

6. Don't leave out the final step in the process. It is not enough to show that the trial court has committed a legal error in construing a rule, making a preliminary factual finding, or making a discretionary determination. You must go on to show that the trial court would have properly reached a different ruling had it not made the error of law.

While preserving the record and identifying and arguing to the correct standard of review are essential stages in the appellate process, they are inconsequential to the appellant if the trial court's error did not result in prejudice, i.e., the error was harmless. An error is not considered prejudicial unless it is more probable than not that it affected the verdict.

The rationale for the harmless error rule is similar to that underlying the popular sports euphemism "no harm, no foul." In other words, appellate courts are not concerned about errors that don't matter to the outcome of a case. Obviously, based on the low percentage of cases that are reversed on appeal, appellate courts consider most errors, including those based on evidentiary rulings, to be of the harmless variety.

There are essentially two broad categories of evidentiary errors. The first category consists of those in which the appellant contends the trial court erroneously excluded certain evidence. Errors in this category are generally considered harmless for a number of reasons, including: (1) the evidence was of little or no value in determining the merits of the case; (2) the evidence was cumulative; (3) the evidence was inadmissible for a reason other than that ruled on by the trial court; and (4) the failure to admit the evidence was cured by the court's jury instructions.

The second category consists of errors in which the appellant contends that the trial court erroneously admitted certain evidence. Errors in this category might be considered harmless for a number of reasons, including: (1) the fact established by the erroneously admitted evidence was supported by other, admissible evidence presented at trial; (2) any prejudice in admitting the evidence was cured by a jury instruction; and (3) the evidence supported a proposition which was true as a matter of law.

It is generally quite difficult for the appellant to establish that a particular evidentiary error warrants reversal. Therefore, an individual evidentiary error must address a central issue in the case in order to be prejudicial. However, it may be easier for the appellant to establish prejudice if he or she can demonstrate that the court committed a number of errors, which, when taken cumulatively, are sufficient to demonstrate prejudice. Thus, almost always argue that the cumulative effect of multiple errors resulted in prejudice, even if the errors, when considered individually, do not warrant reversal.

Prejudicial Error

Because most evidentiary errors are not prejudicial, consider adopting a strategy of conceding the existence of an obvious evidentiary error, and instead, focus your argument towards explaining why the error was not prejudicial. By adopting this approach, you avoid looking foolish by denying the existence of an obvious error, while at the same time protecting your client's interest and arguing about what really matters.

Copyright 2000, Metropolitan News Company