Trial team: consider including an appeal lawyer


It may seem odd that an appellate lawyer is participating in a trial. But a new Michigan Court of Appeal ruling shows that a second set of eyes, for an appeal, can benefit both clients and attorneys at the trial level.

In Estate of Kord Kostich v Monroe Motor Sports, Inc, not published by Curiam Opinion of the Court of Appeals, published October 14, 2021 (Docket No 353446), the trial team’s failure to keep an issue on appeal cost the complainant a new trial. Kord Kostich was killed when his vehicle hydroplaned in rain and turned into oncoming traffic. Kostich’s wife, as a personal representative of his estate, filed a negligence claim against Monroe Motor Sports, claiming that she failed to recognize that the tread depth of one of the tires on the Kostich’s vehicle was inadequate for wet roads. When the jury returned a verdict for Monroe Motor Sports, the plaintiff’s lawyer requested that the jury be questioned. The parties had apparently agreed that only five of the eight jurors should agree to support a verdict. But, when the trial court questioned each juror individually, only four of the eight jurors said the announced verdict was theirs. The court of first instance nevertheless upheld the verdict. Neither party opposed it.

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 if the complainant was right, the Court of Appeal ruled that the complainant was not entitled to a new trial because his lawyer did not object when the trial court upheld the verdict. Under Michigan’s “increase or waiver rule”, the Court of Appeal explained that by failing to object, the plaintiff waived his ability to appeal the matter. “[T]o the extent to which there was uncertainty as to the jury’s verdict or the effect of the ballot on the validity of the jury’s verdict, “said the Court of Appeal,” the plaintiff should have raised the issue at the era, when it could have been promptly dealt with and any necessary clarification obtained, and appropriate corrective action could have been taken if necessary. So what should have been a simple reversal in favor of the plaintiff became a loss on appeal due to an oversight at the trial level. the injury, on remand, the claimant must pay significant case assessment penalties to Monroe Motor Sports.

Litigators are, as they should be, focused on the finest factual details of their case and the art of persuading jurors based on how those facts are presented by witnesses and summarized in closing arguments. Sometimes, however, it blurs even the best litigators’ view of the technical legal details that can lead to reversible error on appeal. Having an appellate lawyer on the trial team can help preserve a trial victory or, unlike Monroe Motor Sports, make sure that the problems are preserved so that a loss at trial that should not have been corrected by the court of appeal.

© 2021 Miller, Canfield, Paddock and Stone PLC Revue nationale de droit, volume XI, number 288


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