AUTOPSY OF A TRUSTS AND ESTATES CASE: THE APPELLATE DOCTOR IS IN

By Allonn E. Levy, Esq.,* and Ryan D. Cunningham, Esq.*

"It’s dead Jim." By the time those words are uttered the cause is so lost that even the illustrious Dr. McCoy cannot save the patient.¹ But for front-line trusts and estates litigators, the cause is often not lost; the patient can still be saved. Trial court errors can be corrected on appeal so long as the right groundwork is laid and the right steps are taken. Of course, the opposite is also true. Even the most mundane missteps can be a death knell for a case if not properly addressed at either the trial court or appellate levels. This article discusses the appellate process for trusts and estates litigation matters by examining the steps common to such appeals and highlighting the typical pitfalls. The doctors performing this autopsy are two appellate practitioners² with extensive experience litigating trusts and estates appeals.

I. STARTING AT THE END – THE APPELLATE DECISION

Many clients—and some practitioners—believe that an appeal provides a second bite at the legal apple. But as we explain here, that is not quite right. While a direct appeal³ is an appeal of right⁴—in that the reviewing court must hear it⁵—the reviewing court’s viewpoint is quite different from that of the trial court. Practitioners ignoring that reality do so at their client’s peril. This concept is particularly important in the area of trusts and estates litigation where many trial court decisions involve an exercise of discretion or turn on factual determinations.