Preserving Trial Errors for Appeal

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As a busy trial lawyer, your daily battles in the trenches probably don’t leave you much time to think about the appellate process. But it’s important to remember that you can only appeal errors committed by the trial court. Preservation of error simply means that you give the trial court an opportunity to correct mistakes as they occur.

This article covers the basics of preservation. At a minimum, counsel should keep in mind the following points:

NO. 1: Order a Court Reporter.

“‘Litigants who proceed … without a court reporter take a calculated risk. If the facts are determined adversely they may well be unable to demonstrate error on appeal due to the absence of a record.’” Rose v. Clements, 973 So. 2d 529 (Fla. 1st DCA 2007). When you appeal, you have the burden of providing an adequate record to the appellate court. Unless you are appealing a pure question of law or the error appears on the face of the judgment, it’s difficult, if not impossible, to demonstrate error without a transcript. Even at a summary judgment hearing where facts are not contested, a transcript may be necessary to prove a specific argument was preserved. Id.

Failing to record hearings seems particularly common in family law cases where counsel is working conscientiously to keep costs low. But is it really saving your client money if he winds up with an adverse ruling that can’t be appealed? As a general principle: if it’s worth attending, it’s worth reporting.

NO. 2: Make a Contemporaneous Objection.

If your opponent attempts to introduce objectionable testimony or evidence, you must make a timely objection and state the specific grounds for the objection. See § 90.104(1) (a), Fla. Stat. Simply saying objection is not enough. And be sure to state all the grounds of your objection if there is more than one basis for excluding the evidence. On appeal, you will not be able to argue a ground for exclusion that was not raised in the trial court. See Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010). For example, you will be unable to argue hearsay if you only objected to a lack of authentication.

NO. 3: Make a Proffer.

If the trial court excludes your evidence, be sure the record contains the substance of the evidence or testimony you wanted to introduce. See § 90.104(1)(b), Fla. Stat. You can file depositions, take live testimony from an excluded witness, off er a written statement, or have excluded evidence marked for the record. Proffering the evidence ensures that the appellate court understands its importance and the extent of the error. A proffer can be important even where the trial court has considered the issue before trial. “[An] in-trial proffer provides the trial court with the substance, scope and relevance of the evidence sought to be introduced, viewed in the context of the testimony already adduced. Such a proffer affords the trial court an opportunity to reconsider its prior ruling (or better inform a deferred ruling), and may result in the admission of the proffered evidence, eliminating any potential error.” Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So. 3d 867, 869 n.2 (Fla. 3d DCA 2013).

NO. 4: Obtain an Adverse Ruling.

Of course, no one wants adverse rulings, but unless the court rules against you, there is no error to complain about. Along these lines, be sure to actually secure a ruling. Trial courts will oft en tell opposing counsel to “move along” or “wrap it up.” These statements will not preserve your objection. There is nothing wrong with respectfully asking the judge to issue a ruling.

Importantly, if your objection is sustained, you still do not have an adverse ruling. You need to ask for a curative instruction or a mistrial until the trial court stops ruling in your favor. In the case of opposing counsel’s objectionable conduct during trial, you must timely move for a mistrial before you can seek a new trial post-verdict. See Campanioni v. City of Tampa, 51 So. 3d 452 (Fla. 2010). However, under Ed Ricke & Sons, Inc. v. State, 468 So. 2d 908 (Fla. 1985), you can couple your motion for mistrial with a request that the trial court defer ruling until aft er the jury returns its verdict.

NO. 5: Closing Pointers.

Before you head into your next trial, take the time to brush up on the grounds for objections and review the specific rules for preserving error in jury selection. Also, consider contacting a Florida Bar board certified appellate specialist. Appellate counsel oft en appreciates the opportunity to get involved before an appeal, and can help you create a proper appellate record. Rebecca Bowen Creed and Jessie Harrell 


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Rebecca Bowen Creed

Rebecca Bowen Creed and Jessie Harrell are Florida Bar board certified appellate specialists with Creed & Gowdy P.A. Specializing in appeals and trial support, the two attorneys are each AV-rated by Martindale-Hubbell and a master with the First District Appellate American Inn of Court. Rebecca earned her law degree with honors from the University of North Carolina at Chapel Hill in 1991, while Jessie attended the University of Florida Levin College of Law, graduating in 2001 with high honors.

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