By Marcia Silvers
In my last post, I told of the sorrowful bane of appellate lawyers everywhere. It’s the case where there is clear error below, but trial counsel has inadvertently waived that error due to the failure to preserve the record. Here’s that post: “Give Your Appellate Lawyer a Helping Hand.”
In that post, I gave five important tips for preserving the record on appeal and not tripping up your appellate lawyer.
1. Make Your Objections.
2. Be Certain that the Court Clearly Rules on your Objections.
3. Be Certain That Rulings Are On the Record.
4. File Motions in Limine.
5. Make Offers of Proof.
Now, let’s look at tips six through ten:
6. Don’t Invite Error.
Be careful what you wish for. The law is clear that an appellant cannot complain about an error that he or she created or invited. Classic examples of invited error include a jury instruction you requested, a comment you made during your closing argument, a verdict form you submitted, or reliance upon evidence to which you objected at the trial.
7. Make Motions for Mistrial to Preserve the Record on Appeal.
If opposing counsel elicits testimony in violation of an evidentiary ruling or makes an improper remark during closing argument, a simple objection may not preserve the error for review, if the trial court gives a curative instruction. Where that occurs, trial counsel should move for a mistrial at the time of the improper conduct and argue to the court that the curative instruction was inadequate to prevent unfair prejudice. Without such a motion, the appellate court may conclude that the party was satisfied with the curative instruction and did not want the case to be taken away from the jury.
8. Prepare Your Own Jury Instructions and Object to Improper Instructions.
Error in the court’s charge is among the most likely sources of reversible error on appeal. Jury instructions can be a bonanza for the appellate lawyer but a minefield for the trial lawyer. Be aware that the appellate lawyer cannot claim error for the court’s failure to give a particular instruction if the trial lawyer never requested it. And, of course, under the doctrine of “invited error,” the appellate lawyer cannot complain about an erroneous jury instruction you requested below.
The casualness and informality with which proposed jury instructions are handled can also come back to haunt you. If the record on appeal is not clear as to who proposed the allegedly erroneous instruction, the appellate court will assume the appellant did. Therefore, prepare and file your own instructions. Be certain that charge conferences are on the record, and that you object to those instructions – even those offered by the court – that are erroneous and harmful to your case.
It is important to make specific objections, describing the objectionable content and the grounds of the objection, lest the argument be deemed waived. Also make sure that you object before the charge is read to the jury.
9. Don’t Shy Away from Objecting to Improper Closing Argument.
If you have reason to believe that your opposing counsel will make an improper remark during the closing argument, ask the trial judge in advance to caution opposing counsel against making it. If the court denies your motion, request a standing objection that would make it unnecessary to interrupt the closing argument.
However, trial lawyers usually cannot anticipate opposing counsel’s improper closing argument. In such a situation, you must contemporaneously object to that remark in order to preserve the record on appeal. Many lawyers have great reluctance to object during closing argument. Perhaps it is out of fear of alienating the jurors, who have waited all this time to hear the story summed up for them. Will the jury think you have something to hide if you pop up and mouth off? Or will they just be irritated at having the story interrupted? Maybe innately we know that jurors watch television and movies where objections are frequently made during testimony but seldom during argument.
In summary, be ever vigilant to improper closing argument comments – not just to preserve the record for appeal but to prevent the danger of the jury deciding the case by relying on opposing counsel’s comments that are not supported by the law.
10. This is Basic: Timely File Your Notice of Appeal.
Watch your calendar! Failure to timely file your notice of appeal might constitute malpractice in a civil case or ineffective assistance of counsel in a criminal case. And, most importantly, it will deprive your client of appellate review of the judgment.
Conclusions Regarding the Record on Appeal
You, the trial lawyer, have a stressful and challenging job. I am loathe to make it even more so by suggesting the need for heightened attention to preservation of error. However, as the proverb goes: “The greatest regret is for the things we have not done.” Even in the heat of trial battle, do your very best to preserve the record on appeal.
(Marcia Silvers is an appellate lawyer in Miami with more than 30 years experience in both criminal and civil cases. She has been named to both Florida Super Lawyers and to Florida Trend’s “Legal Elite.” For more information, visit her website.)