We often quip that the best way to establish a winning record as an appellate lawyer is to represent the party that won below; that’s no joke. In nearly every appellate court— state or federal— appellants have an uphill battle. For both practical and legal reasons, that makes sense. If parties got a total do-over in appellate courts, our already busy court systems would grind to a halt. In addition, trial judges are the jurists who actually live with cases, come to know parties and counsel, and thus often are the best positioned to be the deciders on key legal and factual issues.
While still before the trial court, litigants can do a lot to increase their odds of success on appeal if they do find themselves unlucky enough to become the appellant. I often sound like a broken record when I stress the importance of making your record. Yet two recent published decisions from the Eighth Circuit Court of Appeals emphasize just that point.
The first case, from the Eighth Circuit Bankruptcy Appellate Panel, demonstrates that the court can do little to help an appellant without a meaningful record. In John Huonder v. Champion Milking Systems, No. 16-6011 (8th Cir. Sept. 29, 2016), appellant-debtors brought an adversary proceeding in the bankruptcy court against a creditor after the creditor allegedly improperly tried to collect debts that had been discharged in the bankruptcy (in bankruptcy lingo, the creditors allegedly violated the discharge injunction). The debtors prevailed below but were not awarded all the attorney fees they had requested, nor were they awarded punitive damages. They appealed both issues, and lost both. The Court...
