Give Your Appellate Lawyer a Helping Hand

By Marcia Silvers

I’m an appellate lawyer who recently argued a case before the U.S. Court of Appeals for the Eleventh Circuit. The record seems clear that the trial judge made several errors that warrant reversal of a criminal conviction.

So I must feel pretty good about the case, right?


Trial counsel failed to object and preserve the issues for appeal.  I was forced to argue that the “aggregation” of multiple errors deprived my client his constitutional right to a fair trial.  There is authority for that proposition, including an Eleventh Circuit case less than a year old.  But will the court rule my way?  There is no way to know.

Dear Trial Lawyer: Help Your Appellate Lawyer

So trial lawyers, hear my plea.  Preserve the record on appeal!  Do it for yourself, for your clients, and for your appeals lawyer.  I don’t mean to be critical.  In the heat of combat, certain matters may be overlooked that I might discover, months later, calmly reviewing the transcript with a hot cup of tea in one hand a yellow marker in the other.  But to avoid these problems in both civil and criminal matters, I’ve put together ten tips for not tripping up your appellate lawyer.  Below are the first five tips.  Next week, I’ll post numbers six through ten.  While I am a Florida appellate lawyer, I practice nationwide, and these “rules” are general enough to apply in nearly all juridictions.

1.  “Objection, Your Honor!”

The classic way in which trial lawyers fail to preserve the record is not making appropriate objections on the record, especially about the admission and exclusion of evidence.  Pay close attention to the timeliness of your objections.  Generally, the trial lawyer must object contemporaneously to the error at issue.  A premature or late objection is tantamount to no objection and does not preserve the error.  When in doubt, object!

Merely uttering the words, “I object,” however, is insufficient.  It is important to state the complete legal ground for what the trial court did or did not do.  Although no magic words are required to make a proper objection, the concern articulated in the objection has to be specific enough to inform the court of the perceived error.  The specific contention asserted as the legal ground for the objection must be the issue that is presented on appeal. Otherwise, the issue will be deemed not to have been preserved for appeal.

Jimmy Stewart didn't need an appellate lawyer

Jimmy Stewart knew how to object to George C. Scott’s question of Lee Remick in “Anatomy of a Murder.”

If your case is criminal, constitutionalize your objection whenever possible by explicitly asserting both Federal and State constitutional grounds. If your objection involves a rule or statute, it is always best to identify the rule or statute so that there is no question as to the grounds.

If a co-party makes an objection or motion and you want to join, state on the record that you join in that objection or motion.  There are many reported cases where a party prevails on appeal but his co-party loses because his trial counsel did not clearly join in the prevailing party’s objection or motion.

Trial lawyers are often placed in a position where they must make frequent objections in order to properly preserve the record, but they fear that constant objections will alienate the jurors.  (Or even the judge).  In such a situation, the trial lawyer can ask the court to have a “continuing objection.”  In most cases, the appellate courts will accept the continuing objection, provided that an adequate legal basis has been laid.  However, appellate courts prefer to have an objection stated each time the evidence is introduced.  Because a trial attorney’s failure to properly preserve the record for appeal can present dire consequences and because case law is ever-changing, it is always better to err on the side of caution and re-assert your position every time the same or a similar issue arises.

2.  Be Certain that the Court Clearly Rules on your Objections.

Here is another nightmare for every appellate lawyer.  Trial counsel diligently makes a timely and specific objection to a plainly reversible error, but all is for naught because the judge failed to make a clear ruling.  The law is definite that, unless the record unambiguously shows that the trial judge ruled on the request, motion or objection, the appellate court will not reverse.  For this reason, if the trial judge says he or she will rule “later,” make sure that the judge does so.

Gregory Peck didn't need an appellate lawyer

No one could make a dignified objection any better than Atticus Finch (Gregory Peck) in “To Kill a Mockingbird.”

If the trial judge responds to your objection by saying something cryptic that you assume means that your objection is overruled, ask the judge to clarify the ruling.  I will never forget the heartbreaking case of Carratelli v. State, 832 So.2d 850 (Fla. 4th DCA 2002).  The appellate court held that the trial judge committed reversible error by failing to grant the defense lawyer’s for-cause challenges to prospective jurors, but nevertheless affirmed the conviction.  Why?   Because counsel simply assumed, based upon the judge’s previous statements, that the request for additional peremptory challenges had been denied, when, in fact, the judge was silent.  As a result, instead of reversing the defendant’s vehicular manslaughter conviction, the appellate court affirmed.  The client is still serving a 15-year sentence.

Appellate Lawyer Cutler

Bruce Cutler, objecting during the Phil Spector murder trial. Be forceful, but it’s not necessary to look like Pavarotti hitting a high note.

3.  Be Certain That Rulings Are On the Record.

Some judges make important rulings in sidebar conferences or in chambers when a court reporter is either not present or not recording the colloquy.  Whether the judge is simply too casual in approach or is trying to protect the ruling from appellate scrutiny is of little matter.  What is important is to get the court to put its ruling on the record.

Yes, this can be ticklish.  You do not want to offend the judge.  But your primary responsibility is to your client.  A firm but polite request to have a court reporter record all conferences should suffice.  If a ruling is made outside the presence of the reporter, the prudent path would be for the lawyer on the losing side of the ruling to ask the judge for an oral recitation, once the court reporter’s fingers are again hovering over the keyboard.  As a very last resort if the request is refused – and yes, I know this risks alienating a cantankerous trial judge – the lawyer can announce the ruling into the record in a self-help method of preserving the record.

Paul Newman didn't need an appellate lawyer

Paul Newman knew how to object…perhaps a little too vociferously..

No matter how ornery the judge, I don’t recommend that trial counsel emulate fictional lawyer Frank Galvin (Paul Newman) in the classic film, “The Verdict.”  Faced with an unfavorable ruling from a crooked judge, the down-and-out lawyer blurted out to the judge: “I know about you.  You couldn’t hack it as a lawyer.  You were a bag man for the boys downtown and you still are!”

4.  File Motions in Limine.

Motions in limine are used to head off an opponent’s attempt to introduce evidence that is excludible for any number of reasons, including hearsay, irrelevance, or evidence that is more prejudicial than probative.  Such motions are obviously valuable to you, the trial lawyer, because they enable your objection to be considered before the jury hears the evidenceHowever, trial judges are often reluctant to grant such motions without having heard the testimony pertaining to it.  If the judge makes a tentative ruling or defers ruling on the motion in limine, the non-prevailing party must contemporaneously object to the admitted evidence at the time of trial.  The issue is not preserved for appeal merely by filing the motion in limine and obtained a ruling on it.

It is best to renew the motion before the witness who will testify as to the objectionable evidence takes the stand.  If you do not know which witness opposing counsel will use to introduce the evidence, you will just have to be vigilant so that you can object immediately when a witness starts to testify about the contested evidence.

If your motion in limine is definitively granted but, during trial, opposing counsel violates that ruling, you are still required to make a contemporaneous objection.  If the objection is sustained, in most jurisdictions you must move for a mistrial in order to preserve the error for appeal.

Appellate Lawyer Marcia Silvers

Marcia Silvers argues a point before the Third District Court of Appeal in Miami.

5.  Make Offers of Proof.

Federal Rule of Evidence 103(a)(2) provides that “[e]rror may not be predicated upon a ruling which…excludes evidence unless…the substance of the evidence was made known to the court by offer or was apparent from the context within which the questions were asked.”  This rule makes it clear that the failure of a trial attorney to make an offer of proof when the trial court excludes evidence will result in the waiver of the evidentiary argument.  Indeed, there are legions of cases finding waiver because of the failure to make an offer of proof.  It is a simple yet vital step for preservation purposes.  An offer of proof is sufficient if it apprises the court of the substance of the testimony and may be presented in the form of a concise statement.

Those are the first five tips.  Appeals lawyers in every jurisdiction will thank you for adhering to them.  I know trial lawyers work under constant stress and I hate to add to it.  So I gently suggest the need for heightened attention to preservation of error.  Even in the heat of trial battle, please do your very best to preserve the record on appeal. Give your appellate lawyer a hand and your client a fighting chance.

Marcia Silvers…for the Defense

Author’s Note: I received my law degree, with honors, from the University of Miami Law School in 1981. I am admitted to practice in the courts of Florida, the United States Supreme Court, eight federal courts of appeal, and several federal district courts.  I have won a wide variety of cases – many high profile – from homicide to white collar crime, Internet pornography to Medicaid fraud, drug offenses to tax evasion and money laundering. There is virtually no criminal offense I have not encountered in my three decades of practice, mainly in appellate and post-conviction litigation.  I also handle civil appeals.  I am been named to Florida Super Lawyers, rated 10.0 by Avvo, and named to “Legal Elite” by Florida Trend Magazine.  Visit my home page for more details.



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