Correcting Mistakes Made at Trial

by | Apr 26, 2016

An experienced appellate attorney must be able to make lemonade out of lemons. On appeal, a client’s arguments may be limited by the mistakes of his trial attorney, or by the mistakes he made in representing himself.

For example, a husband represented himself in a recent divorce. Although he had a highly sophisticated knowledge of the various pieces of real and personal property that would be included in determining the overall “marital property,” he failed to anticipate how challenging it would be to prove the value of those various assets. One asset proved particularly difficult because it was, in its nature, fluid and unpredictable with regard to its cash value. Eventually, the wife introduced evidence in the form of an email that the trial court used to establish the value of the asset. If neither party had presented evidence of the asset’s value, it would have “fallen through” – the court would have determined that the asset should not be included in its calculation of the marital property.

As an appellate attorney, Mark Hayes knows that the husband’s self-representation at trial created a problem for his eventual appeal. The email, which was admitted into evidence by the trial court, was not objected to because the husband was not aware that it fell short of the requirements in the Rules of Evidence. This failure limited which arguments could be presented on appeal. An experienced appellate attorney will be able to work within the confines of such mistakes, whether they were made by the trial attorney or by the client in representing himself.

“Whether the asset is shares of stock or the marital home, both of which could be valued very differently depending on who you ask, this case illustrates the importance of having experienced attorneys both at trial and on appeal,” commented Mark Hayes. “It helps me bring a stronger challenge on appeal if the trial attorney, or the client for that matter, is able to preserve issues by objecting to things such as admitted hearsay,” he continued. “The reality is that even experienced trial attorneys will occasionally miss something like this, and the client is limited in what they can do on appeal,” Hayes said. However, an experienced and skillful appellate attorney such as Mark Hayes can correct a lot of mistakes made during trial, either by the trial attorney or by a pro se client.

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