Creating and Preserving the Record for Appeal

Charles P. Bauer
Published on : 2012-01-05

Creating and preserving the record for appeal issues is essential to good trial practice and procedure. There must be a good faith basis for creating and preserving issues in the record for appeal.

Pre-Trial Practice

Pre-Trial Motions – Motion to Dismiss; Motion for Summary Judgment, Motion in Limine, Requests for Jury Instructions

Filing timely pre-trial motions (i.e. motions to dismiss; motions for summary judgment, motions in limine, requests for jury instructions, etc.) are important to create and preserve issues for appeal. Not every motion filed is a winner. So long as there is a good faith basis for filing a motion, consider doing so. Several things may happen. You might win the motion! Of course that gives the opposing party an issue for appeal. Opposing counsel might withdraw a particular count or claim – there is no issue for appeal. A motion might force opposing counsel to respond in a manner that will later be helpful, or at least informative, to you. The motion might create an opportunity for settlement or mediation discussions. The court might deny the motion but provide helpful or informative rulings for later in the case. The court might deny the motion and the issue is preserved in the record for appeal.

Trial Practice

Objections during Trial

One of the best ways to make an objection to proffered evidence is to file a motion in limine to obtain a ruling from the court without a jury present.

At trial, counsel needs to evaluate every question asked by opposing counsel and every answer provided by a witness. Often times “red-flag words” are used by opposing counsel in questions, such as “is it possible that . . .?” Likewise, witnesses sometimes use “red-flag words” that highlight objectionable testimony, such as “My guess is that . . . .” Most of the time, however, it is not as easy to listen for “red flag words” to determine whether or not to make an objection at trial.

A preliminary determination — almost instantaneously — must be made by counsel whether to object or not to an objectionable question or answer.

While jurors expect lawyers to make some objections during the course of a trial, by and large, jurors are skeptical of objections because they think the objecting lawyer is trying to hide or keep away information from the jury. In most cases, they are right. Likewise, jurors get frustrated with “may I approach the bench” which is a not-so- subtle form of an objection.

Be professional and judicious in making objections in front of jurors.

Don’t hesitate to object when it is required and necessary. If the question is improper and the answer is prejudicial, object. If the question is improper and the answer will not hurt you, don’t object.

Consider when and how to make an objection. If you anticipate or hear an objectionable question and believe it is necessary to object, do you wait for the entire question to be asked, or do you start to get on your feet in the middle of the question to highlight that an objection is about to be made? The latter sometimes has the effect of having the questioner stop the question or alter the question. It also sometimes has the effect of foreshadowing to the judge that he/she should take careful note of the question being asked because an objection is coming. Most judges want the entire question asked before the objection is raised. That’s fair in most circumstances.

If you decide to object, stand up and say “objection.” Don’t ramble on saying something like “judge, how can this witness know the answer to that question” or some such foolishness. If you are going to object say “objection.” Then hesitate. Hesitating allows opposing counsel to “withdraw the question” or rephrase the question, without any court intervention. Hesitation also allows the judge to say “sustained” without you providing a legal basis for the objection. A slight hesitation after saying “objection” also allows the court to ask “basis?” If after saying objection and hesitating, neither opposing counsel nor the judge says anything, state the legal basis for your objection clearly and succinctly. Then stop. Now the ball is out of your court — and into opposing counsel’s court — or the judge’s court.

If you decide not to object to a question or answer, for whatever reason, you will have waived an appeal on that issue. Only proper and timely objections protect the record.

If you make an objection, and opposing counsel does not withdraw the question, insist on a ruling from the judge. If you do not obtain a ruling on an objection, the record is not properly preserved for appeal on that issue.

If a witness answers a question to which an objection has been made, and your objection is sustained by the court, request a ruling from the court that “the answer be stricken” and the jury instructed to “disregard the answer.” It’s hard to un-ring the bell. But, if you don’t ask, you have not properly preserved the record for appeal on that issue.

If you object to a question and the court overrules your objection, to adequately preserve the record for appeal on that issue, you must state the legal basis for your objection. If you fail to state the legal basis for an objection which is overruled, the record on appeal has not been preserved, except as to relevancy.

You may have several legal basis for an objection, such as hearsay, relevancy, and leading. If you have more than one basis for your objection, make them all to adequately preserve the record for appeal.

If opposing counsel objects to your question and it is sustained by the Court, to adequately preserve the record on appeal for that issue you must make a proper offer of proof. Since the objection was sustained, the offer of proof must be made outside the earshot of the jury. This can be done either by way of a sidebar conference with the court, opposing counsel, and the stenographer; or during a requested recess outside the presence of the jury. It is important to put on the record the evidence that would have been elicited from the witness. This can be done either by way of the lawyer’s offer of proof or by a question and answer format with the witness, if the judge permits.

Whether to object, or not, during jury selection, jury voir dire, opening statement, closing argument, and jury instructions by the court pose thorny issues but might be necessary and required to preserve the record for appeal.

Arguing the facts or arguing the law during jury selection and/or jury voir dire is improper. While generic reference to the facts and law of the case is permitted, discussion of the details of the case or applicable law is beyond the scope of jury selection and voir dire. Use discretion whether to object or not at this early stage in front of the jury.

During opening statements, counsel can tell the jury what facts they will likely see and here during the trial. Arguing the facts or evidence is improper. Likewise, arguing the law during the opening statement is improper. It is also improper during the opening statement to tell the jury about any inadmissible evidence, including settlement negotiations, insurance information, collateral source information, evidence stricken by motions in limine, stating personal opinions or interpretation of the evidence (i.e., “I think…I believe . . .”). Whether to make an objection during opposing counsel’s opening statement requires careful consideration.

During closing argument, it is impermissible to give personal opinions; misstate the law or clearly misstate evidence; use a “per diem” damages argument, or ask the jury to put itself “into the shoes of a party or witness”; appeal to the jury’s bias, prejudice, or pecuniary interest; or mention inadmissible evidence. Again, objections during closing arguments must be carefully considered but may be essential to preserve the record on appeal on that issue.

Ask the judge how she/he wants to handle objections to jury instructions. Be careful, the jury always sides with the judge.

Pre-Verdict Practice

Motion for Directed Verdict; Motion for Mistrial

A motion for directed verdict may be made orally or in writing to the judge. It should be made after all the evidence is presented by your opponent. The motion must set forth with particularity that considering all of the evidence presented no reasonable person could conclude that the opposing party is entitled to a verdict as a matter of law. Failure to timely move for a motion for directed verdict constitutes a waiver of any claim that the evidence was insufficient to support a verdict for the opponent.

A motion for mistrial may be filed at any time until a verdict is returned. A motion for mistrial may be submitted verbally or in writing and must recite specific facts or circumstances that demonstrate that the trial has been prejudiced or compromised to such an extent that a fair trial can no longer occur. A judge will grant a motion for mistrial only if, in the court’s discretion, justice cannot be served if the trial continues to verdict. Failure to timely move for a mistrial is a waiver of any right to the claim after verdict that the trial was unfair.

Quick Reference of Trial Objections

Consider having a “Quick Reference of Trial Objections” in front of you at trial table. Commonly used trial objections are:

1. Not Relevant / Not Material – NHRE / FRE 401-403

2. Compound Question – NHRE / FRE 611(a)

3. Ambiguous Question – NHRE / FRE 611(a)

4. Beyond the Scope of Direct, Cross, or Redirect – NHRE / FRE 611(a/b)

5. Hearsay – NHRE 801-806 / FRE 801-807

6. Leading Question – NHRE / FRE 611(c)

7. Calls for Speculation – NHRE / FRE 611(a)

8. Calls for a Narrative Answer – NHRE / FRE 611(a)

9. Calls for a Conclusion – NHRE / FRE 701

10. Calls for Improper Opinion – NHRE / FRE 701-704

11. Unresponsive to Question – NHRE / FRE 611(a)

12. Repetitive Question – NHRE / FRE 611(a)

13. Assumes a Fact not in Evidence – NHRE / FRE 611(a)

14. Lacks Foundation – NHRE / FRE 401, 701-702

5. Lacks Authentication – NHRE / FRE 901-903

16. Privileged Communication – NHRE 501-505 / FRE 501-502

17. Violates Best Evidence Rule – NHRE / FRE 1001-1008

18. Argumentative – NHRE / FRE 611(a)

19. Prejudicial Outweighs Probative Value – NHRE / FRE 403
20. Cumulative – FRE 611

* Charles P. Bauer is licensed to practice in New Hampshire.