As multi-million dollar verdicts rise across the country, a new trend is emerging among defendants and insurers: retaining appellate counsel prior to trial.

Naturally, trial attorneys are responsible for preserving arguments for appeal. But devastating verdicts and increasingly complex preservation rules are turning courtrooms into minefields, where one misstep can cause irreparable damage.

Inadvertently waiving appellate arguments has never been easier, nor has it ever been more costly. To make matters worse, the need to avoid such mistakes is becoming a source of additional pressure for trial attorneys who should focus on presenting evidence.

The risks of rising verdicts

It’s no secret that verdicts are on the rise. Many organizations are reporting a sharp increase in jury awards of $10 million or more, also known as “nuclear” verdicts.

The American Tort Reform Association reports that massive verdicts cost hundreds of thousands of jobs each year, while consumers foot the bill for rising insurance premiums.

Experienced trial attorneys are ratcheting up verdicts by “forum shopping,” where they file lawsuits in states they deem favorable. These are typically jurisdictions where the courts allow tactics that tend to increase verdicts, including:

• Suggesting high verdicts to jurors during closing arguments, or “anchoring.”
• Using “reptile theory” to appeal to jurors’ sense of community.
• Utilizing third party litigation funding to maximize pressure on defendants.

As a result, the scales are tipping in favor of spending extra defense funds on appellate counsel in high-stakes cases.

The Challenges of Appellate Preservation

Trial courts across the United States require clear, pointed, and timely objections. Understanding the protocol to preserve appellate rights is not always simple. Both timing and mechanics are critical components of a proper objection. Furthermore, the rules vary wildly from state to state, and the case law interpreting them continually evolves.

Even during jury selection, experienced trial attorneys have mistakenly waived appellate arguments.

In a Louisiana case, the plaintiffs objected to a 90-minute time limitation during voir dire, but the appellate court deemed their objection waived for failure to object precisely at the beginning or end of jury selection. Boutte v Centerpoint Energy Resources Corp.

In a New Jersey trial, the plaintiffs objected to the lack of diversity in the jury pool and timely submitted a peremptory challenge strike sheet, yet their argument was waived because they objected after jury selection concluded. Smith v. Doria.

In Texas, a corporate plaintiff waived its right to challenge a jury question after the court rejected its proposed questions. The plaintiff presumed that rejection preserved appeal of the decision, but an additional objection was required. Santander Consumer USA Inc. v Enter. Fin. Group, Inc.

As trials progress, appellate preservation becomes even more important, while the rules remain surprisingly inconsistent from one state to the next.

For example, in some jurisdictions, motions in limine are sufficient to preserve arguments to preclude evidence, while other states require additional objections during trial. Ohio courtsrequire an objection upon presentation of the evidence. Cook v. Beeman. Massachusetts courts used to have the same rule but changed it in 2016 to consider a denial of a motion in liminesufficient to preserve argument. Commonwealth v. Grady. Because Grady did not overturn prior decisions, many pre-2016 cases that supported the outdated rule appear to the untrained eye to be binding.

Trial attorneys may also be surprised by rules that require filing documents to preserve appellate arguments. Under Ohio law, for example, objecting to a magistrate’s factual decision requires filing of the transcript within 30 days of filing absent a showing of good cause. Although this sounds simple enough, an appellant violated this rule because the court calculated the 30-day limit by adding two separate time periods—one before the magistrate paused the time to order transcripts and one after—for a total of 42 days. Millenbaugh v. Millenbaugh.

In Georgia, appellants must timely file trial transcripts to move forward with appeals. Again, this seems like an easy rule to follow, but one party nearly lost its appeal by wrongly assuming the court clerk’s “transcript charge” meant the transcript had been filed. Premier Pediatric Providers, LLC v Kennesaw Pediatrics, P.C. In that case, the Georgia Supreme Court reinstated the appeal, but many appellants are not so fortunate.

In other instances, parties must file precisely timed motions to preserve appeals. Massachusetts courts require defendants to file motions for directed verdict at the close of the plaintiff’s case, and again at the close of all evidence, to preserve its arguments for a post-trial motion for judgment notwithstanding the verdict. See Mass. R. Civ. P. Rule 50(b). Similarly, Florida courts require a motion for rehearing to be filed within 15 days of entry of judgment to preserve appellate rights. See Fla. R. Civ. P. 1.530. Missing these deadlines is typically irreparable.

Trial attorneys are most effective when they focus on presenting evidence rather than wading through the sea of volatile rules to preserve appeals. And with verdicts at an all-time high, even a small reduction in risk of can represent a million-dollar value. For these reasons, appellate counsel will likely become more and more commonplace during high-stakes trials.

To learn more about how CMBG3’s Appellate Department can assist with your trials and appeal, please contact Alex Green at ag****@***g3.com.

—-

Cases cited:

Boutte v Centerpoint Energy Resources Corp., 24-32 (La App 3 Cir 11/13/24) [2024].

Smith v Doria, 2024 N.J. Super. Unpub. LEXIS 835, at *9-10 [Super Ct App Div May 9, 2024, No. A-3138-22]).

Santander Consumer USA Inc. v Enter. Fin. Group, Inc., 2024 Tex. App. LEXIS 9135 [Tex Ct App Dec. 31, 2024, No. 05-23-00770-CV].

Cook v. Beeman, 150 N.E.3d 643, 645–46 (Ind. Ct. App. 2020).

Commonwealth v. Grady, 474 Mass. 715, 718–19 (2016).

Millenbaugh v Millenbaugh, 2024-Ohio-5425, ¶ 8 [Ct App 2024].

Premier Pediatric Providers, LLC v Kennesaw Pediatrics, P.C., 318 Ga 350, 350, 898 SE2d 481, 483 [2024].