“We agree with the Appellant that the prosecutor used highly inflammatory and prejudicial language in closing argument, language that this Court has previously deemed sufficient to justify reversal. However, the Appellant’s lawyer at trial failed to object or otherwise preserve that issue for appeal, and we reluctantly affirm.”
Oh, the bane of the appellate lawyer. Yes, I mean you, the trial lawyer. The one who failed to preserve the record for appeal.
My intent is not to criticize the trial bar. Rather, it is to help overstressed trial lawyers preserve their clients’ appellate rights. In the heat of combat, the goal of every trial lawyer is to win the case. It is easy to overlook things that an appellate lawyer, calmly assessing the trial record months later, will recognize immediately as potential grounds for reversal after the case is lost.
As I write this article, I am preparing for an oral argument before the U.S. Court of Appeals for the Eleventh Circuit. The trial record in the case reveals several errors:
- At the joint trial, the court admitted into evidence a non-testifying codefendant’s confession without a limiting instruction.
- The government exposed the jury to irrelevant, highly inflammatory evidence about my client, including an extramarital affair with a stripper.
- In closing argument, the government overstepped permissible bounds by essentially calling defense counsel a liar.
On the face of it, my client has a strong case for reversing his conviction. But trial counsel failed to object to these and other things that tarnished the trial to the prejudice of my client.
Do I regret that? You bet. But all is not lost. Recently, the Eleventh Circuit ruled that “an aggregation of non-reversible errors . . . can yield a denial of the constitutional right to a fair trial, which calls for reversal.” United States, v. Capers, 708 F.3d 1286, 1299 (11th Cir. 2013). Whether the appellate court will find that we have met that burden in my case remains to be seen.
To avoid these problems in both civil and criminal matters, I’ve compiled ten tips for not tripping up your appellate lawyer.
1. “Objection, Your Honor!” The classic way trial lawyers fail to preserve the record is by not making appropriate objections, especially about the admission and exclusion of evidence. Pay close attention to timeliness. Generally, the trial lawyer must object immediately to an error. A premature or late objection is tantamount to no objection and preserves nothing for appeal. When in doubt, object!
However, merely uttering the words “I object” is insufficient. It is important to state the complete legal basis for your complaint about what the trial court did or did not do. Although a proper objection requires no magic words, it must be sufficiently specific to inform the court of the mistake. The stated legal grounds for the objection will determine the scope of appellate review. A failure in this regard will lead the appellate court to conclude that the litigant failed to preserve the issue.
Perhaps you remember the hilarious movie My Cousin Vinny (1992), starring Joe Pesci as Vinny Gambini, an apparently incompetent lawyer who learns as he goes while defending a murder trial. After the prosecutor’s opening statement, poor Vinny doesn’t know what to say. Here’s what comes out of his mouth: “Uh. Everything that guy said is bullshit. Thank you.”
Whereupon the prosecutor gets to his feet and quite properly says: “Objection. Counsel’s entire opening statement is argumentative.”
And the judge rules: “Sustained. Counsel’s entire opening statement, with the exception of ‘Thank you,’ shall be stricken from the record.”
Funny, yes. But I admire the prosecutor for stating the specific grounds for his objection to the argumentative opening statement.
Whenever possible in criminal cases, constitutionalize your objection by asserting explicitly both federal and state constitutional grounds. If your objection involves a rule or statute, identify it to eliminate later doubts about the basis for your position.
If a co-party makes an objection or motion you want to join, state on the record that you do so. In many reported cases, a party prevails on appeal but the co-party loses because his or her trial counsel never clearly joined in the prevailing party’s objection or motion.
Trial lawyers often face this dilemma: They must make frequent objections to preserve the record, but they fear alienating the jury with a constant stream of interruptions. (They may fear alienating the judge too.) One solution is to ask the court for a continuing objection. In most cases, appellate courts will recognize a continuing objection as long as the trial lawyer has offered an adequate legal basis for it. However, appellate courts prefer to see an objection stated each time the evidence is introduced. Because a trial attorney’s failure to preserve the record for appeal can produce dire consequences and because case law on the subject of waiver is ever-changing, better to err on the side of caution and reassert your position every time the same or a similar issue arises.
2. Make certain the court rules clearly on your objections. Here is another appellate lawyer nightmare: The trial lawyer diligently makes a timely and specific objection to a plainly reversible error, but all is for naught because the judge failed to rule. Unless the record shows unambiguously that the trial judge decided the request, motion, or objection, the appellate court will not reverse on that basis. For this reason, if the trial judge promises to rule “later,” make sure that he or she does so.
In addition, if the trial judge responds to your objection with something cryptic that you perceive as overruling your objection, ask for clarification. I will never forget the heartbreaking case of Carratelli v. State, 832 So. 2d 850 (Fla. 4th DCA 2002). The appellate court found that the trial judge committed reversible error by failing to grant defense counsel’s for-cause challenges to several prospective jurors but still affirmed the conviction. Why? After defense counsel used all his allotted peremptory challenges on three jurors whom the court had refused to excuse for cause, he told the court that he would have stricken a fourth juror as well, “if you granted me more peremptories.” The judge didn’t respond. Trial counsel did not ask specifically for additional peremptory challenges because he assumed the court wouldn’t grant them. As a result, the appellate court found that defense counsel had not preserved his objection to the fourth juror. Instead of reversing the defendant’s vehicular manslaughter conviction because a biased juror sat on the case, the court of appeals affirmed. The client is still serving a 15-year sentence.
3. Make certain that rulings are on the record. Some judges make important rulings in sidebar conferences or in chambers, when the court reporter is either absent or not recording the colloquy. Whether the judge is simply too casual or trying to protect the ruling from appellate scrutiny is of no consequence. What matters is getting the court to put its ruling on the record.
Yes, this can be ticklish. You do not want to offend the judge. But your primary responsibility is to your client. A firm but polite request to have a court reporter record all conferences should suffice. If the court rules outside the presence of the reporter, the prudent path is for the lawyer on the losing side of the ruling to ask the judge for an oral recitation, once the court reporter’s fingers are again hovering over the keyboard. If the court refuses that request, as a last resort—and, yes, I know this risks alienating a cantankerous trial judge—the lawyer can announce the ruling into the record as a self-help method of preserving the objection.
In either event, regardless of how ornery the judge may be, I don’t recommend emulating fictional lawyer Frank Galvin (played by Paul Newman) in the classic film The Verdict (1982). Faced with an unfavorable ruling, the down-and-out lawyer blurted out to the judge: “I know about you. You couldn’t hack it as a lawyer. You were a bag man for the boys downtown and you still are!”
4. File motions in limine. Motions in limine are used to head off an opponent’s attempt to introduce evidence that is excludable for various reasons, including hearsay, irrelevance, or prejudice that outweighs probative value. Such motions are obviously valuable to you, the trial lawyer, because they enable the court to consider your objection before the jury hears the damaging evidence. But trial judges are often reluctant to grant such motions without the context of the related testimony. If the judge makes a tentative ruling or defers ruling on the motion in limine, the losing party must object contemporaneously to the evidence as the court admits it during trial. In such circumstances, merely filing the motion in limine (coupled with the court’s earlier tentative ruling) does not preserve the issue for appeal. Renew the motion just before the applicable witness takes the stand. If you do not know which witness will try to provide the evidence, you will have to be vigilant and object immediately as the testimony comes in.
If your motion in limine is definitively granted but, during trial, opposing counsel violates the ruling, you still must object when it happens. If the objection is sustained, most jurisdictions require that you move for a mistrial to preserve the error for appeal.
5. Make offers of proof. Federal Rule of Evidence 103(a)(2) provides that “[e]rror may not be predicated upon a ruling which . . . excludes evidence unless . . . the substance of the evidence was made known to the court by offer or was apparent from the context within which the questions were asked.” In other words, the failure of a trial attorney to make an offer of proof when the trial court excludes evidence can result in the waiver of the evidentiary argument. Indeed, there are legions of cases finding waiver because an attorney failed to make an offer of proof. It is a simple, yet vital, step for preservation purposes. An offer of proof is sufficient if it informs the court of the substance of the testimony; a concise statement will suffice.
6. Don’t invite error. Be careful what you wish for. 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 on evidence to which you objected at trial.
7. Move for mistrial. If opposing counsel elicits testimony in violation of an evidentiary ruling or makes an improper remark during closing argument, an objection may lead the trial court to give a curative instruction. If trial counsel is dissatisfied with that outcome and wants to preserve the underlying issue for appeal, the only available avenue is a motion for mistrial at the time of the improper conduct. In connection with that motion, counsel should argue that the curative instruction was inadequate to prevent unfair prejudice. Absent a motion for mistrial, the appellate court may conclude that the party was satisfied with the curative instruction and willing to let the case proceed to verdict with the jury that heard it and the inadmissible evidence.
8. Prepare your own jury instructions and object to improper ones. Error in the court’s charge is among the most frequent sources of reversible error on appeal. Jury instructions can be a bonanza for the appellate lawyer, but they can be 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 the trial lawyer never requested. And, of course, under the doctrine of “invited error,” the appellate lawyer can’t gripe about an erroneous jury instruction the trial lawyer did request.
Handling jury instructions casually or informally can come back to haunt you. If the record isn’t clear as to who proposed the allegedly erroneous instruction, the appellate court will assume the appellant did. Therefore, prepare and file your own instructions. Make sure the charge conference is on the record and that you object to those instructions—even those the court offers—that are erroneous and hurt your case. It is important to make specific objections and describe their content and the grounds, lest the appellate court deem the issue waived. Also make sure you object before the court reads the charge to the jury.
9. Don’t shy away from objecting to improper closing argument. If you have reason to believe your opposing counsel will make an improper remark during closing argument, ask the trial judge in advance to caution him or her against making it. If the court denies your motion, request a continuing objection to avoid interrupting the closing argument.
Usually, trial lawyers cannot anticipate opposing counsel’s improper closing argument. In such situations, preserving the issue for appeal requires a contemporaneous objection. Many lawyers are reluctant to object during closing argument. Perhaps they fear alienating the jurors who have waited a long time to hear the lawyers summarize a fragmented story told through many witnesses. If you pop up and mouth off, will the jurors think you have something to hide? Or will they just be irritated that you interrupted the story? Maybe we think jurors watch television and movies in which lawyers object frequently during witness testimony but seldom during final argument.
Let’s turn again to The Verdict. It was nominated for five Academy Awards, not so much for its legal accuracy as for Paul Newman’s powerful performance as a beleaguered lawyer who achieves redemption by fighting against overwhelming odds to win a medical malpractice case. In famed playwright David Mamet’s screenplay, the high point of the movie is Newman’s closing argument for the plaintiff:
So much of the time we’re just lost. We say, “Please, God, tell us what is right; tell us what is true.” And there is no justice: the rich win, the poor are powerless.
Whoa. Let me interrupt. Shouldn’t the white-shoe defense lawyer played by James Mason have objected to this obvious plea for sympathy for his poor client? Sure, I understand the dramatic purpose of the speech, but your case isn’t fiction. Object immediately and ask for a curative instruction.
If you’re interested, here’s the rest of Paul Newman’s dramatic closing:
We become tired of hearing people lie. And after a time, we become dead . . . a little dead. We think of ourselves as victims and we become victims. We become weak. We doubt ourselves; we doubt our beliefs. We doubt our institutions. And we doubt the law. But today you are the law. You ARE the law. Not some book . . . not the lawyers . . . not a marble statue . . . or the trappings of the court. See those are just symbols of our desire to be just. They are, in fact, a prayer: a fervent and a frightened prayer. In my religion, they say, “Act as if ye had faith . . . and faith will be given to you.” If . . . if we are to have faith in justice, we need only to believe in ourselves. And act with justice. See, I believe there is justice in our hearts.
To the extent that Newman appears to be asking the jurors to ignore the court’s instructions and instead become “the law,” his argument was improper, but there was no objection to be heard. And, of course, the jury came back with a question every plaintiff’s lawyer would love to hear. Could they award Newman’s client even more money than he requested?
In summary, be ever vigilant to improper remarks in closing argument—not only to preserve the record for appeal but also to prevent the danger that the jury will rely on them.
10. This is basic: Timely file your notice of appeal. Watch your calendar! Failure to file your notice of appeal on time usually constitutes malpractice in a civil case or ineffective assistance of counsel in a criminal case. And, most important, it will prevent your client from asking an appellate court to review the judgment.
You, the trial lawyer, have a stressful and challenging job. I am loath to make it harder by heightening your sensitivity to preserving error along the way. But as the proverb goes, the greatest regret is for the things we have not done. Even in the heat of battle, try to preserve the record on appeal.