December 16th, 2014

How do you like them apples?

by Kathleen Barnes in Issue Preservation, Practice Pointers

You have probably heard the phrase “You only get one bite at the apple.” What is so wrong with two or three bites? After all, it takes more than one bite to finish an apple. In the legal profession, the phrase “one bite at the apple,” generally means a party gets one chance to prove his case. That phrase sums up my theory of the practice of law as it relates to appeals—you only get one bite. Make it count.

A case is likely a party and attorney’s one bite at the apple. There are numerous examples of this in South Carolina law, including issue preservation, collateral estoppel, and issue and claim preclusion. An appeal is not a “second bite” used to dig deeper to the core of a case or find juicier law or facts. It is a continuation of the case—the first (and only) bite. Enter appellate attorney, whose focus is to preserve the candy red apples and sweeten the sour ones.

An appellate attorney’s role includes pre-trial preparation (drafting motions in limine, motions for summary judgment, and jury instructions) as well as trial work (issue preservation, drafting verdict forms and jury questions, and ensuring evidence of all causes of action or defenses are presented). A complete trial court record is essential to success on appeal because it is all the appellate attorney and courts can work with to decide a case. The way a case is framed to the trial court limits the breadth of how it is framed on appeal.

Preparing for dispositive motions and trial with an appeal in mind increases the chance of success on appeal. This is why I devote a large portion of my practice to trial support and appellate advocacy and why this blog is devoted to figuring out the most effective ways to make that one bite count.