September 18, 2013 Articles

Basics in Preserving the Record on Unfavorable Evidentiary Rulings

To properly preserve adverse rulings for review, follow these five steps.

By Adam J. Sheppard

Appellate courts are reluctant to reverse a judgment based on an evidentiary ruling. Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1310 (10th Cir. 1990) [login required]. For one thing, such rulings are reviewed under the deferential abuse-of-discretion standard. Old Republic Ins. Co. v. Emp'rs Reinsurance. Corp., 144 F.3d 1077, 1082 (7th Cir. 1998) [login required]. Second, it is difficult to convince an appellate court that an evidentiary ruling may have substantially affected the outcome of the case—i.e., that it is not a “harmless” error. Third, appellate courts will deny a claim of error where the appellant failed to properly preserve the argument in the trial court.

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