December 6, 2021

Volume XI, Number 340

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December 03, 2021

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Thinking Ahead: Why You Should Consider Including an Appellate Lawyer on Your Trial Team

It may seem odd to have an appellate lawyer participate during a trial. But a new decision from the Michigan Court of Appeals shows that a second set of eyes, with a view toward appeal, can benefit both clients and lawyers at the trial level.

In Estate of Kord Kostich v Monroe Motor Sports, Inc, unpublished per curiam opinion of the Court of Appeals, issued October 14, 2021 (Docket No 353446), the trial team's failure to preserve an issue for appeal cost the plaintiff a new trial. Kord Kostich was killed when his vehicle hydroplaned during rainy weather and veered into oncoming traffic. Kostich's wife, as personal representative of his estate, brought a negligence claim against Monroe Motor Sports, claiming that it failed to recognize that the tread depth of one of the tires on Kostich's vehicle was inadequate for wet roads. When the jury returned a verdict for Monroe Motor Sports, Plaintiff's attorney asked for the jury to be polled. The parties had apparently agreed that only five out of the eight jurors would have to agree to support a verdict. But, when the trial court polled each juror individually, only four of the eight jurors stated that the verdict announced was their own. The trial court nevertheless confirmed the verdict. Neither party objected.

On appeal, the plaintiff argued that the estate was entitled to a new trial because an insufficient number of jurors agreed with the verdict. Even though the plaintiff was correct, the Court of Appeals held that the plaintiff was not entitled to a new trial because its attorney did not object when the trial court confirmed the verdict. Under Michigan's "raise or waive rule," the Court of Appeals explained that by not objecting, the plaintiff waived its ability to appeal the issue. "[T]o the extent that there was any uncertainty about the jury's verdict or the effect of the polling on the validity of the jury's verdict," the Court of Appeals said, "plaintiff should have raised the issue at the time, where it could have been promptly addressed and any needed clarification obtained, and appropriate remedial action could have been taken if necessary." So, what should have been an easy reversal in the plaintiff's favor became a loss on appeal due to an oversight at the trial level. To rub salt in the wound, on remand the plaintiff must pay significant case-evaluation sanctions to Monroe Motor Sports.

Trial lawyers are, as they should be, focused on the finest factual minutia of their case and the art of persuading jurors based on how those facts are presented through witnesses and summarized during closing arguments. Sometimes, however, that clouds even the best trial lawyers' vision of the technical legal details that can lead to reversible error on appeal. Having an appellate lawyer as part of the trial team can help preserve a win at trial or, unlike Monroe Motor Sports, make sure that issues are preserved so that a trial loss that shouldn't have been can be corrected in the appellate court. 

© 2021 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XI, Number 288
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About this Author

Paul Hudson Litigation Attorney Miller Canfield Law Firm
Principal

Paul chairs the firm's Appeals group and focuses his practice almost exclusively on appellate matters in the state and federal appeals courts.

He has argued more than 40 appeals in appellate courts across the country, including in the Michigan Supreme Court, the Michigan Court of Appeals, and the United States Courts of Appeal for the Sixth and Seventh Circuits. He serves as a lead appellate counsel for a large automotive OEM in appeals throughout the Midwest, and lead appellate counsel for a large insurer in the Michigan appeals courts. He also represents individual clients in...

269.383.5805
Amanda Rauh-Bieri Litigation Lawyer Miller Canfield Law Firm
Associate

Amanda Rauh-Bieri is an associate in Miller Canfield's Litigation and Dispute Resolution Group. She is a magna cum laude graduate of the University of Michigan Law School, where she was associate editor of the Michigan Law Review and co-president of the Women Law Students Association.

Amanda previously worked as a law clerk for both the Honorable John M. Walker Jr. of the U.S. Court of Appeals for the Second Circuit in New Haven, Connecticut; and the Honorable Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit in South Bend, Indiana.​

616.403.8391
Michael Simoni Trial Lawyer Miller Canfield Law Firm
Principal

Michael C. Simoni is an experienced trial and appellate attorney specializing in sophisticated commercial litigation. 

As an appellate lawyer, Michael specializes in providing a fresh set of eyes to each case, evaluating it from the perspective of a neutral appellate judge and determining how to present issues to maximize the chances of a successful appeal. Michael brings forceful written and oral advocacy to each appeal and is expert at presenting complex legal and technical issues so that they are both understandable and persuasive for generalist appellate judges. Michael has...

313.496.7583
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