Error Preservation Planning For Trial And Appellate Litigation: Begin With The End In Mind And Avoid "Gotchas"

• Published date: 11 July 2025
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Thompson Coburn LLP
• Author: Mr Douglas Lang and Katie Kraft

Error Preservation Planning for Trial and Appellate Litigation: Begin with the End in Mind¹ and Avoid "Gotchas"²

Benjamin Franklin said, "If you fail to plan, you are planning to fail!"³ Franklin's rule is especially applicable to litigation. That planning must begin with the "end" in mind.⁴ Of course, the "end" is success at both trial and on appeal. Achieving that "end" requires crafting strategies, immediately, at the very outset of the litigation that address all the foreseeable challenges. That takes time, but defaulting from solid, prompt planning and waiting until the "eleventh hour" to prepare can easily cause one to overlook critical, strategic decisions. Then, the "end" you seek can be lost.

Comprehensive litigation planning requires a litigation team to make tough calls early, regarding at least these questions:

• What are the objectives of the litigation for one's client and the adversary?
• What are the possible "gotchas" that must be avoided?
• What jurisdiction and venue are correct for the case?
• What claims and defenses must be asserted for the client?
• What will the adversary assert as its claims and defenses?
• What is the law regarding the claims and defenses?
• What proof can be offered to successfully assert the claims and defenses?
• What pivotal decisions will a trial court have to make?
• How can the client's position, i.e., trial court error, be preserved for appeal?

The last point, preservation of error for appeal, can be the most important of the planning decisions, and it cannot take a back seat to trial phase preparation. Preservation of trial court error must be considered in conjunction with trial phase planning because the appellate phase, where trial court error is asserted, is where a trial win can become a loss, and a trial loss can become a win. So, the comprehensive litigation plan must anticipate the pivotal rulings that will be made by the trial court, the positions that will be taken on those issues by all parties, and critically, how one must present one's position precisely and clearly to the trial court at the time a ruling is made. If that preparation is accomplished and if the trial court errs in its ruling, one will be able to make the record clear that the trial court was made aware of the client's legal position. Then, a potential appellate point may be preserved, and it may be raised on appeal.

This article is separated into two sections. Each section addresses aspects of strategic planning of litigation matters that are akin yet distinct. The first section consists of a series of basic foundational considerations that typically arise well before the meat of the litigation is underway. Those considerations are, in effect, a lengthy checklist of where and how litigation will commence and progress as well as potential roadblocks. The second section addresses the specific planning of trial strategy, error preservation, and strategy for appeal. Those points typically require lawyers to bore into the substance of the case, anticipate the adversary's tactics, and plan for successful presentation in the trial court and on appeal.

II. The Foundational Tasks and Strategy Points: A Checklist

The points set out below address overarching, foundational considerations about where and how litigation will proceed and potential roadblocks to a smooth process.

1. "Gotchas" Checklist

Sometimes, one may inadvertently ignore obvious rule and statutory "tripwires," or "gotchas." It happens. The suggested "Gotcha" Checklist attached to this paper can provide part of a baseline for a trial and appellate plan.¹ Simply reviewing a list of those potential "gotchas" can jog one's memory to address a particular potential problem. While the points on the "checklist" may seem elementary, there is no substitute for double-checking. The adage "measure twice, saw once" is appropriate for the trial and appellate practice.

2. Other Foundational Checklist Items Regarding Jurisdiction, Venue, Removal, or Arbitration

a. Selection of Court System and Venue

There are many specific considerations to address when one selects where a lawsuit will be filed. The selection of the court system and venue is an opportunity to set the course of the case.

First, you must determine whether the selected court has jurisdiction over the parties. Second, the law of the possible available forums must be reviewed to determine if the law applicable to the claims is more favorable in one jurisdiction than another. An example is the amount of punitive damages that can be recovered. Some states put a "cap" or statutory limit on the amount that can be recovered.² Third, a significant consideration is whether the region, state, or city where a court is located is known for judges and jurors who harbor prejudices or customs that could be unfavorable to a party

b. Jurisdiction

In every case, a thorough review should be undertaken of whether or not the selected court has jurisdiction.³ If the court has no jurisdiction, it has no power to act.⁴ A defendant must raise valid jurisdictional questions by an appropriate motion or pleading requesting that the court dismiss the case.⁵

Of course, the question of whether there is personal jurisdiction is governed by "due process" under the United States Constitution.⁶ Further, the question of whether there is subject matter jurisdiction is determined by whether the law of the forum governs the claims raised.

The United States Supreme Court recently repeated long established law discussing the concept of jurisdiction, stating: "[T]he word 'jurisdictional' is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)."⁷

c. Transfer of Venue and Removal of Suits by Defendants from State Court to Federal Court

In federal courts, venue is governed by statutes not rules.⁸ Once jurisdiction has been established, the venue must be selected.⁹ A defendant may challenge the venue where the suit was filed if the venue is "unfair or inconvenient" or another venue has been agreed to by contract.¹⁰ A significant strategic consideration for a defendant locked into an unfavorable state court venue is to evaluate the possibility of removal of the state court action to federal court. However, one must be mindful that removal is only possible when the federal court has jurisdiction, such as where there is diversity of citizenship, or the case involves a federal question.¹¹

As a first step in the removal analysis, a defendant should consider if a motion to transfer venue in the state court system could be successful. Reasons for a defendant to pursue a state court transfer of venue are similar in some cases to why one might seek removal. Those include: avoiding local prejudice, seeking a different judge, delaying trial, and different jury pools. Additional reasons for removing a case may include: favorable and strict adherence to procedural rules, different trial procedures such as very limited voir dire,¹² obtaining greater expertise on federal questions, and more likely enforcement of arbitration¹³ and jury waiver clauses.¹⁴

When a removal petition is filed, the state case is stayed and transfer to the federal court from the district where the state case was filed occurs immediately.¹⁵ The timing for filing a removal petition is critical. Generally, the defendant must file notice of removal within 30 days after the receipt of the initial pleading or within 30 days after the service of summons, whichever period is shorter.¹⁶ In addition, a party whose case has been removed by an adversary should consider whether to seek remand.¹⁷

d. Enforcing or Blocking the Enforcement of Arbitration Agreements

The foundational issue as to whether arbitration may be compelled is: do the parties have a valid, enforceable agreement to arbitrate.¹⁸ That question, in itself, is the subject of an abundance of litigation. The burden of proof as to the validity of the agreement is on the party seeking to enforce the arbitration agreement. Yet, defenses to enforcement of the agreement may be raised as in any contract litigation.¹⁹ For instance, an arbitration agreement procured by fraud, or that is unconscionable, is unenforceable.²⁰ Should the trial court determine an arbitration agreement is valid and enforceable, in many situations, that court must determine if a party's claim falls within the scope of that agreement. If the claim falls within the scope of the agreement, the "court has no discretion but to compel arbitration and stay its own proceedings."²¹

Unless the parties have voluntarily engaged in an arbitration proceeding, the first step in the process of enforcing an arbitration agreement is to apply to the trial court to compel arbitration.²² Once the motion to compel arbitration is filed, as indicated above, the moving party has the burden to prove the agreement is valid.²³ Then, the burden shifts to a party opposing enforcement of the agreement to raise affirmative defenses to enforcement.²⁴ Should the trial court deny the motion to compel, the aggrieved party may perfect an interlocutory appeal.²⁵ However, should the trial court grant the motion to compel arbitration, the Federal Arbitration Act (FAA) does not provide for an interlocutory appeal. Under federal law, a party may seek appellate review of an order compelling arbitration only if the order is joined with a final judgment of dismissal.²⁶

In the case of Smith v. Spizzirri, the Supreme Court decided to speak again about the appealability of an order of the district court compelling arbitration.²⁷ The Court pointed out that where a district court renders an order compelling arbitration and a party requests a stay of the proceeding pending arbitration, the district court does not have discretion to dismiss the case. The Court determined "Congress made clear in the statute that, absent certification of a...