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Appellate Part Four: Issue Preservation—Tricks to Getting It Right

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written by guest blogger John Campbell

One of the ironies of appellate courts—especially intermediate appellate courts—is that although they sometimes are viewed as a place where policy considerations count, justice is dispensed, and the grind of trial courts is left behind, the truth is that most appellate courts are highly technical, often highly restrictive environments. Intermediate court judges have confided in me that they often don’t feel much like they administer justice. Instead, they apply precedent and follow rules. This is clear to anyone who has had to put briefs in 13-point font, or measure margins, or stop talking because a red light went off. But nowhere is the potentially case-fatal nature of appellate technicality clearer than in the requirement that issues be preserved for appeal.

Federal and state courts uniformly require that an issue must be preserved if it is to be reviewed. The justifications for this are 1) the trial court should be given a fair opportunity to rule on the question first, and 2) appellate courts need a detailed record in order to review whether error occurred.

Preservation can make or break a case. So, included below are a few concrete tips that just might save you some sleepless nights. I’ve focused on the trial court since, in my experience, some of the worst mistakes happen there.

  1. If at all possible, have an appellate attorney at trial tasked only with keeping an eye on appellate issues. I regularly talk to trial attorneys about cases that they tried, only to learn that the issue the “judge got wrong” or the argument that was “completely unsupported by the evidence” was never preserved. This is not a problem with issue spotting. Instead, it is a problem with attention. A trial lawyer can’t review demonstrative exhibits, prepare experts, calm her client, engage in settlement negotiations, and think about preservation. Have an attorney present who can take on these important tasks.
  2. Stipulate to offers of proof. Trial attorneys often feel tired just thinking about making an offer of proof designed to show the court what a witness would have said, or what a line of questioning would have been. It can and usually does interrupt the flow of trial. Avoid this if you can. Ask the other side to stipulate. Remind them that the alternative is a dry, multi-hour offer of proof without the jury even in the room. Smart opponents will often agree. Then, write up the stipulation (it is often clearer than if you actually made the offer in court), reference any pretrial filings, note any other important facts, file the stipulation, and get on with trial.
  3. Make sure to keep a record of rulings on motions in limine, problems with the jury panel, objections made at trial, etc. Just as most good trial attorneys have a list of all the exhibits and then mark if they were used and introduced into evidence, so too should attorneys keep a careful list of objections and rulings. Then, incorporate them carefully in post-trial motions. If the issue is not mentioned explicitly and carefully in the motion for a new trial, it is almost never preserved.
  4. Make a record. I’ve inherited a few appeals in which the trial attorney told me about the faulty reasoning the other side articulated or the less-than-appropriate comments the judge made. When I dug into the record, I didn’t find the statements. It was because the attorney did not insist on a record. There is no doubt that it can be awkward to ask a trial judge for a record (especially if the judge insists on doing things in chambers), but it can make or break your client’s appeal. Insist on a record for most rulings. It will serve you well in the end.

Employ these four tips at the trial court, then carefully follow the appellate rules about preservation, and your client will thank you for it.

Before becoming a professor at Denver University, about 50 percent of John Campbell’s practice was appellate work. He has practiced around the country, including the state supreme courts of Colorado and Missouri and the United States Supreme Court. He has won some statewide awards for his work (one of the most influential appellate attorneys in Missouri in 2011 and 2013), and continues to work on appellate cases and argue them regularly. He now also presents on appellate writing and argument. His focus is on creative approaches to appellate law, both in brief writing and in argument.

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