Trial work is full of split-second decisions. You’re juggling strategy, evidence, witnesses, and the judge’s every word—sometimes all at once. But in the background, one constant remains: everything you do is building a record. And if that record isn’t clear, well-argued, and properly preserved, it could all unravel on appeal.
Appellate lawyers see that aftermath every day. They dissect transcripts, examine records, and look for mistakes—often ones that trial attorneys didn’t realize they’d made.
Certified Appellate Specialist, Tim Kowal, has seen first-hand how trial missteps can turn into appellate headaches. In his presentation Ten Trial Tips from an Appellate Specialist, he outlines practical ways that trial lawyers can protect their clients from unnecessary risk. We’re proud to have Tim as a TypeLaw customer.
In this blog, we unpack Tim’s trial tips, detailing actionable strategies that can make your next trial not only more persuasive, but more appeal-proof.
1. Plan the record from day one
Your trial record isn’t just a byproduct, it’s your backup plan. If your case ends up on appeal, the appellate court won’t see your performance or hear the story as your jury did. They’ll rely solely on the written record that’s created during trial prep and courtroom proceedings.
Tim shared how appellate attorneys often explain this to trial attorneys: “The trial is to me like a deposition is to you. I need clean impeachment just as much as you do.” That means every key issue must be raised and preserved. Object clearly and on the record. Offer exhibits formally. Make a record of rulings. Don’t rely on memory—build your case for review as meticulously as you build it for trial. Think of every motion, ruling, and objection as a possible line in your appellate brief.
Pro tip: Appellate attorneys love clean, well-marked trial records. Make your future colleagues’ jobs easier (and your own verdict safer) by being meticulous.
2. Make your opening statement a roadmap
An opening statement should do more than introduce your client, it should give the jury a roadmap. Let them know what to expect and why it matters. Use your opening to organize their expectations and preview how the facts and law work together. Think of it as a storytelling preview: “I’m going to introduce you to three key moments. When you hear these, I want you to remember X.”
The clearer the structure of your case, the easier it is for the jury to follow—and for the appellate court to understand what you were trying to prove.
Takeaway: A logical structure in your opening sets you up for consistency and appeal-proofing. It’s not only persuasive at trial, it helps the appellate court follow your theory of the case as they read the transcript later.
3. Use motions in limine to lock in key rulings
Motions in limine are more than just a pretrial formality, they help preserve rulings on major evidentiary questions—before emotions are running high and the jury is watching.
Don’t wait for mid-trial objections if you can tee up critical issues ahead of time. Judges often appreciate the foresight, and it gives you a cleaner record. If the ruling goes against you, you’ve preserved it without risking waiver.
Takeaway: Use motions in limine to draw bright lines and frame key issues before the jury ever hears them.
4. Perfect your offers of proof
Offers of proof often feel like a formality, especially when a judge has already ruled. But they’re essential for appeal. If you don’t make one, the appellate court has no idea what was excluded—or why it mattered.
Make your offer specific and on the record: clearly explain what the evidence is, what it would have shown, and why it was relevant. Better still, have a short script or written summary ready before trial. That way, if your evidence is excluded, you’re not left scrambling.
Takeaway: An offer of proof turns a missed opportunity into a preserved issue.
5. Object clearly and promptly
Nobody likes being “that lawyer” who’s constantly interrupting. But failing to object clearly and on time is one of the fastest ways to waive a good appellate issue.
Tim’s advice here is straightforward: if you don’t object properly, the issue is waived. That means objecting at the moment the error occurs, not five minutes later or after a sidebar.
It’s good practice to state the specific legal ground for your objection. Vague objections or unclear timing can leave you without a remedy on appeal. Let the record reflect your concern, and make clear why the error matters.
Takeaway: Be precise and prompt. Waiver is the silent killer of good appellate issues.
6. Treat jury instructions as a persuasive opportunity
Though they shouldn’t be, jury instructions are often an afterthought in trial prep. They are your chance to guide how the jury applies the law to the facts, and appellate courts scrutinize them line by line.
Propose instructions that reflect your theory of the case. Object to the other side’s proposed instructions and make a record of the dispute. Many appeals turn on faulty jury instructions, so be sure to take them seriously from day one.
Pro tip: Think of jury instructions as part of your closing argument, delivered by the judge.
7. Get oral rulings clarified in writing
Trial moves fast and sometimes judges make rapid-fire rulings. But if those rulings aren’t clear on the record, they can be tough to defend—or challenge—on appeal.
If the judge makes a key decision during a sidebar or informal discussion, ask for clarification or propose a short written order. You’re not second-guessing the court, you’re preserving a clean record. That helps everyone, including the judge. A written record keeps everyone honest and prevents disputes about what was said or decided.
Takeaway: Ambiguity helps no one. Nail down oral rulings before they disappear into the transcript fog.
8. Think strategically about verdict forms
The verdict form shapes how jurors make decisions, and what appellate courts can review. A special verdict form (where the jury answers specific questions) can protect your win and clarify where things went wrong if you lose.
Work with the court early to design a form that’s fair, but also preserves your issues. If the jury makes findings on each element, the appellate court can more easily affirm your result, or see exactly where the error occurred.
Takeaway: The verdict form is your final chance to structure the jury’s thinking. Don’t treat it like an afterthought.
9. Preserve more than error, preserve credibility
Yes, preserving error is important, but appellate courts are looking for more than just preserved issues—they’re looking for a coherent narrative that supports your client’s position.
This means avoiding unnecessary theatrics, showing respect for the court’s rulings (even if you disagree), and maintaining your credibility throughout. Juries respond to it. Judges notice it. And appellate courts absolutely care about tone and professionalism.
Think of the appellate record not just as a technical checklist, but as your written legacy of the trial. Make it one you’re proud of.
Takeaway: You’re writing a transcript for future judges. Make it one they want to read and trust.
10. Work with an appellate lawyer early
This isn’t self-promotion, it’s practical advice. Bringing in an appellate specialist during trial prep or before post-trial motions can help you catch problems you didn’t see coming.
Appellate lawyers see different angles. They can help spot issues you might miss, improve motion and instruction drafting, and give early feedback on how certain rulings might look on appeal.
They’re trained to think in terms of legal error, standard of review, and record clarity. Even a brief consultation can flag appellate traps, help draft jury instructions, or guide your motions in limine. And if you do end up appealing (or defending one), the transition will be seamless.
Takeaway: Getting a second set of eyes during trial prep or post-verdict motions isn’t about second-guessing—it’s about strategy.
The trial is the first draft of the appeal
These trial tips aren’t about playing it safe, they’re about playing it smart.
You go to trial and fight to win, but the appeal is where those wins are tested, and where a tough loss can turn into a second chance—if you’ve built a clean, persuasive record.
Trial attorneys who prepare for both outcomes with precision and clarity are the ones who best protect their clients’ interests. So, next time you’re in trial prep, don’t just build a case for the jury, build one the appellate court can stand behind, too.
Get more in-depth tips by viewing Tim’s full presentation.