7.2 Preservation of Issues for Appeal

• Library: Eminent Domain Law in Virginia (Virginia CLE) (2017 Ed.)

7.2 PRESERVATION OF ISSUES FOR APPEAL

7.201 In General. Before anyone gets to an appellate court, someone needs to be paying attention, before and during the condemnation trial, to the state of the trial record. Because of Virginia's contemporaneous objection rule, if the losing litigant has taken a cavalier approach to preserving the record, any appeal will likely be fruitless. Rule 5:25 of the Rules of the Supreme Court of Virginia states, in part:

No ruling of the trial court, disciplinary board, or commission before which the case was initially heard will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice. ²

The rule exists to give the trial judge the first opportunity to get the ruling right, or, in other words, to "afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals." ³

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The justices have consistently applied this rule in ruthless fashion to refuse petitions, dismiss appeals, or decline to address particular issues because a timely, proper objection or proffer was not made below. Note that preservation isn't something that your appellate lawyer can add after trial; preservation is a trial court skill that you must master unless you plan to win all of your cases. Here are eight tips to help ensure that you don't get a nasty surprise when you step to the appellate lectern.

7.202 Ensure That Everything Happens on the Record. A good court reporter is every appellate lawyer's best friend. If there are gaps in the transcript, often because the parties agree to go off the record, whatever happens during that phase of the trial is invisible on appeal, and the appellate court won't touch it. But if your opponent, or even the judge, wants to go off the record, you can insist on keeping everything on the record by citing section 8.01-420.3 of the Virginia Code, which states "the court shall not direct the court reporter to cease recording any portion of the proceeding without the consent of all parties or their counsel of record." If a judge insists on going off the record, you need to be polite but firm in citing the statute: if he or she forces you to do it anyway, you need to recite into the record, on your return to open court, what transpired and note your objection to the court's refusal to allow the reporter to accompany you.

7.203 Beware of the Motion-in-Limine Trap. When you file and argue a motion in limine to exclude evidence, there are three things the judge can do with it: deny it, in which case the evidence comes in; grant it, in which case the evidence is out; or punt the decision over to the trial judge for adjudication at trial. If you're in the third position, keep in mind that you still must object when the evidence is offered, because the issue is still "live." You don't need to object again if the in-limine judge denies your motion, because as a general rule you don't need to keep...