If you're a trial litigator in the California state courts and you tend to ignore unpublished decisions when you conduct legal research, you can be forgiven. They get a big red flag in Westlaw, they're not citeable, and nothing is more frustrating than finding perfect authority that you can't call to the court's attention.

Appellate lawyers, however, tend to at least glance through all the cases that come out of the Court of Appeal, published and unpublished. We do it primarily to try to understand the appellate justices better, but in the process, we see all kinds of mistakes trial lawyers make that end up dooming their later chances on appeal—especially in terms of waiver, forfeiture, and invited error, the procedural banes of every appellate attorney.

(Notably, this kind of insight is limited to the California appellate courts, which are mandated to issue decisions that fully discuss all facts and issues whether published or unpublished. In contrast, unpublished memorandum dispositions in the Ninth Circuit address facts and legal issues in a highly summary and generally opaque fashion. As a result, it's often hard to glean much of value from them, even though unpublished federal decisions are technically citeable.)

Here are a few waiver, forfeiture, and invited error traps that snagged trial lawyers in recent unpublished decisions from the California Court of Appeal:

Don't let even one important in-court discussion take place off the record. In Breeze v. Baer, the court “illustrate[d] the hazards of going off the record to discuss issues involving a complicated 12-page, 52-question special verdict form.” The special verdict in question awarded the plaintiff damages figure under a breach contract theory, and a much larger damages figure for the same conduct under a quantum meruit theory. The trial court entered the quantum meruit damages as the judgment, and the defendant appealed on the ground the court should have entered judgment for the contract damages instead. The Fourth District, Division One, explained the defendant was right—because the jury found a contract exists, quantum meruit is inapplicable—but that because the defense submitted the proposed special verdict form that required the jury to resolve quantum meruit anyway, the defense invited the error and it could not form a basis for appeal. Although the defense asserted it requested the court tell the jury not to decide quantum meruit if it found a contract, the lack of a transcript of the verdict form colloquy meant any such request was not effectively preserved for appeal.

Don't accede if the trial court reopens an issue it already decided in your favor, even in complex, long-term litigation. In Darsky v. Darsky, the trial court decided numerous discreet financial issues in a complex divorce at different times over course of five years of litigation. In 2011, the court decided several financial questions in the wife's favor, but a 2014 ruling revisited several of those questions, in addition to several others, and found in the husband's favor. The wife appealed on the basis that the trial court was bound to the 2011 order by the doctrine of res judicata. The First District, Division Two, found, however, that the wife did not complain at the 2014 hearing that res judicata prohibited the court from ruling on any of the issues it planned to—and eventually did—rule on. As a result, the court found the wife waived her argument based on res judicata.

If you think an arbitration agreement is unlawful, be sure to raise unlawfulness in the trial court before arbitrating. In Elms v. Ahn, a group of homeowners hired a contractor to build them an underground garage. A dispute eventually arose concerning the contractor's work, and the contractor filed a demand for arbitration pursuant to the arbitration clause in his agreement with the homeowners. The homeowners filed a counterclaim, and the parties arbitrated. The contractor won. The contractor petitioned to confirm the award, but the homeowners opposed on the ground that the arbitration clause did not include statutorily required disclosures. The trial court confirmed the award anyway, and the First District, Division Two, affirmed. The court found that where a party has an argument that an arbitration clause is unlawful, that argument must be raised in the trial court before arbitration commences. Otherwise, by participating in the arbitration, the party forfeits any argument that the arbitration clause is void.

If you're a plaintiff, make sure your grounds for opposing a defendant's summary judgment motion are in your complaint. In Simpson v. Zhang, the Fourth District, Division Three, considered an appeal of an order granting summary judgment against a plaintiff in her dental malpractice action on statute of limitations grounds. The complaint sought damages for nerve pain following a dental implant procedure, but in her opposition to summary judgment, the plaintiff asserted a triable issue of fact based on the dental surgeon's failure to inform her of his suspended license. The only problem: the complaint did not allege any claim based on the suspended license. The Court of Appeal affirmed on that basis, explaining that the plaintiff should have amended her complaint (or at least sought leave to amend) to allege damage from the dentist's nondisclosure of his licensing status prior to the hearing if she wished to oppose summary judgment on that basis and preserve such an argument for appeal.

A single wrong word during the jury instruction colloquy can waive your entire appeal. In Castro v. Los Angeles County Sheriff's Department, the Second District, Division Five, affirmed a jury verdict in favor of a Los Angeles County Sheriff's Department employee who, while driving an 18-wheel truck, rear-ended a car stalled in traffic at nearly 20 miles per hour. The car's injured occupants appealed on the ground that the doctrine of res ipsa loquitur—“the thing speaks for itself”—created a presumption in favor of negligence that the evidence did not overcome. The court of appeal rejected the contention on the basis of waiver. The court found that while discussing jury instructions, the trial court said, “I have res ipsa loquitur,” and the plaintiff's attorney responded, “Withdrawn.” By withdrawing the instructional request, the plaintiff waived the entire contention on appeal.

Every once in a while, it can be worth flipping through some of the recent unpublished decisions to see the mistakes that are catching the attention of the Court of Appeal and leading to waiver, forfeiture, and invited error findings—the kinds of topics that don't often make it into published format. Or if your litigation is high-stakes enough, consider bringing an appellate lawyer in early on, so he or she can help make sure you don't end up in one of those ignominious unpublished opinions yourself.

If you're a trial litigator in the California state courts and you tend to ignore unpublished decisions when you conduct legal research, you can be forgiven. They get a big red flag in Westlaw, they're not citeable, and nothing is more frustrating than finding perfect authority that you can't call to the court's attention.

Appellate lawyers, however, tend to at least glance through all the cases that come out of the Court of Appeal, published and unpublished. We do it primarily to try to understand the appellate justices better, but in the process, we see all kinds of mistakes trial lawyers make that end up dooming their later chances on appeal—especially in terms of waiver, forfeiture, and invited error, the procedural banes of every appellate attorney.

(Notably, this kind of insight is limited to the California appellate courts, which are mandated to issue decisions that fully discuss all facts and issues whether published or unpublished. In contrast, unpublished memorandum dispositions in the Ninth Circuit address facts and legal issues in a highly summary and generally opaque fashion. As a result, it's often hard to glean much of value from them, even though unpublished federal decisions are technically citeable.)

Here are a few waiver, forfeiture, and invited error traps that snagged trial lawyers in recent unpublished decisions from the California Court of Appeal:

Don't let even one important in-court discussion take place off the record. In Breeze v. Baer, the court “illustrate[d] the hazards of going off the record to discuss issues involving a complicated 12-page, 52-question special verdict form.” The special verdict in question awarded the plaintiff damages figure under a breach contract theory, and a much larger damages figure for the same conduct under a quantum meruit theory. The trial court entered the quantum meruit damages as the judgment, and the defendant appealed on the ground the court should have entered judgment for the contract damages instead. The Fourth District, Division One, explained the defendant was right—because the jury found a contract exists, quantum meruit is inapplicable—but that because the defense submitted the proposed special verdict form that required the jury to resolve quantum meruit anyway, the defense invited the error and it could not form a basis for appeal. Although the defense asserted it requested the court tell the jury not to decide quantum meruit if it found a contract, the lack of a transcript of the verdict form colloquy meant any such request was not effectively preserved for appeal.

Don't accede if the trial court reopens an issue it already decided in your favor, even in complex, long-term litigation. In Darsky v. Darsky, the trial court decided numerous discreet financial issues in a complex divorce at different times over course of five years of litigation. In 2011, the court decided several financial questions in the wife's favor, but a 2014 ruling revisited several of those questions, in addition to several others, and found in the husband's favor. The wife appealed on the basis that the trial court was bound to the 2011 order by the doctrine of res judicata. The First District, Division Two, found, however, that the wife did not complain at the 2014 hearing that res judicata prohibited the court from ruling on any of the issues it planned to—and eventually did—rule on. As a result, the court found the wife waived her argument based on res judicata.

If you think an arbitration agreement is unlawful, be sure to raise unlawfulness in the trial court before arbitrating. In Elms v. Ahn, a group of homeowners hired a contractor to build them an underground garage. A dispute eventually arose concerning the contractor's work, and the contractor filed a demand for arbitration pursuant to the arbitration clause in his agreement with the homeowners. The homeowners filed a counterclaim, and the parties arbitrated. The contractor won. The contractor petitioned to confirm the award, but the homeowners opposed on the ground that the arbitration clause did not include statutorily required disclosures. The trial court confirmed the award anyway, and the First District, Division Two, affirmed. The court found that where a party has an argument that an arbitration clause is unlawful, that argument must be raised in the trial court before arbitration commences. Otherwise, by participating in the arbitration, the party forfeits any argument that the arbitration clause is void.

If you're a plaintiff, make sure your grounds for opposing a defendant's summary judgment motion are in your complaint. In Simpson v. Zhang, the Fourth District, Division Three, considered an appeal of an order granting summary judgment against a plaintiff in her dental malpractice action on statute of limitations grounds. The complaint sought damages for nerve pain following a dental implant procedure, but in her opposition to summary judgment, the plaintiff asserted a triable issue of fact based on the dental surgeon's failure to inform her of his suspended license. The only problem: the complaint did not allege any claim based on the suspended license. The Court of Appeal affirmed on that basis, explaining that the plaintiff should have amended her complaint (or at least sought leave to amend) to allege damage from the dentist's nondisclosure of his licensing status prior to the hearing if she wished to oppose summary judgment on that basis and preserve such an argument for appeal.

A single wrong word during the jury instruction colloquy can waive your entire appeal. In Castro v. Los Angeles County Sheriff's Department, the Second District, Division Five, affirmed a jury verdict in favor of a Los Angeles County Sheriff's Department employee who, while driving an 18-wheel truck, rear-ended a car stalled in traffic at nearly 20 miles per hour. The car's injured occupants appealed on the ground that the doctrine of res ipsa loquitur—“the thing speaks for itself”—created a presumption in favor of negligence that the evidence did not overcome. The court of appeal rejected the contention on the basis of waiver. The court found that while discussing jury instructions, the trial court said, “I have res ipsa loquitur,” and the plaintiff's attorney responded, “Withdrawn.” By withdrawing the instructional request, the plaintiff waived the entire contention on appeal.

Every once in a while, it can be worth flipping through some of the recent unpublished decisions to see the mistakes that are catching the attention of the Court of Appeal and leading to waiver, forfeiture, and invited error findings—the kinds of topics that don't often make it into published format. Or if your litigation is high-stakes enough, consider bringing an appellate lawyer in early on, so he or she can help make sure you don't end up in one of those ignominious unpublished opinions yourself.