A Primer on Preservation
By Karen L. Dowd, Partner
As jury trials start back up, we thought that a few reminders on preservation of issues might be helpful. Because if it’s not preserved at trial, it can’t be appealed (with limited exceptions). This is a quick primer and not intended to cover all possible preservation issues at trial.
1. The best way to be sure that an issue is preserved for appeal is to plan for it ahead and put it in writing for filing with the court.
2. Have all proffered evidence marked. If it is not allowed in as a full exhibit, it should be marked for identification. Failure to have the evidence marked will generally preclude any appeal on the propriety of its exclusion. Generally, all proposed evidence is pre-marked but if something new comes up, don’t forget to get it marked.
3. State ALL grounds for an objection. This has two parts. First, don’t just say “objection” – state what the basis is (unless of course the court immediately and enthusiastically yells sustained, in which case, sit down). Second, state all of the possible bases – if there is more than one basis to preclude/object to evidence/testimony, state them all. Then if the objection is overruled, you can appeal the ruling on any of the stated bases.
4. As a corollary, if the court, without waiting for details, immediately and enthusiastically yells sustained to an objection to your question or proffer, ask the court (politely) for the basis of its ruling. Absent some explanation for the ruling, any possible basis for sustaining the objection may be assumed (with limited exceptions).
5. If a witness is excluded or their testimony is limited, make an offer of proof as to what that witness would have said.
6. If you have an objection to a line of questioning, either get the court to agree on the record that you have a running objection which does not need to restated every time the issue comes up, or make sure you object every time the issue comes up. Each court is different, but if you object to half of the testimony and then stop objecting, it may be considered a waiver of the issue.
7. Be wary of chambers conferences! The chambers conference is becoming a favorite of the courts. Rather than move the jury in and out, you can fairly easily move the counsel and the court into chambers. Seems reasonable until you realize that unless the court reporter follows you into chambers, any discussion is off the record. Thus, your wise and salient explanation of your position with on-point citations and brilliant examples will not be preserved for posterity or at least the Appellate Court. “Ambiguous statements in the course of a trial cannot incorporate by reference undisclosed matters discussed in a chambers conference and be thus transmuted into exceptions effective under our rule. We cannot act on ‘assumed rulings of the court that are not discoverable on the record.’ Bevins v. Brewer, 146 Conn. 10, 13, (Conn. 1958) (internal citations omitted).
Moreover, if there is more than one basis (see above) for either side of the argument, there will be no way of knowing which the court relied upon when making its decision. Most courts like to come back and say the decision without anything further. If you won and don’t want a record, this works for you. Otherwise, ask the court (politely) to allow you to make a record of the conference. That can wait until a break when the jury is out of the courtroom. Also, if you have filed something in writing, you can refer to that – hence the “put it in writing” advice at the beginning.
The goal of any trial is to win! But the back-up goal is to preserve any issues in case you lose. By all means, focus on the former but giving some thought to the latter prior to starting trial can make the process less stressful. More importantly, it protects your clients!