§ 11.6 How to Preserve Error in The Trial Court

• Jurisdiction: Washington

§11.6 HOW TO PRESERVE ERROR IN THE TRIAL COURT

There are specific requirements for preserving certain kinds of error in the trial court, such as error in admitting or excluding evidence or in giving or refusing jury instructions. See ER 103, CR 51. Those requirements are discussed in §11.7(1) and (2) below. The general rule, however, regarding the manner of objecting to a trial court ruling is stated in CR 46:

Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

In its Comment to RAP 2.5, the Advisory Task Force on Appellate Rules stated: "These rules do not supersede court rules which define the means by which an error must be preserved in the trial court, such as CR 43, 46, and 51." Rules of Appellate Procedure (RAP), Rule 2.5 cmt. (a), 86 Wn.2d 1133, 1152 (1976), reprinted in 2A Karl B. Tegland, WASHINGTON PRACTICE: RULES PRACTICE, Task Force Comment to RAP 2.5, at 263 (8th ed. 2014).

The term "formal exceptions" in CR 46 refers to the traditional practice of preserving objections by means of a separate document, known as a bill of exceptions. See Milton D. Green, BASIC CIVIL PROCEDURE 255 (2d ed. 1979). Despite the abolition of the bill of exceptions, most attorneys and judges continue to use the term "exceptions" to refer to objections regarding jury instructions. CR 46 does not relieve litigants of their duty to inform the trial court of their objections to jury instructions as a prerequisite for appellate review. That duty is set forth in CR 51 and is discussed in §11.7(2) below.

"A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court." RAP 2.5(a). This part of the rule was added in 1994 and overrules Washington case law to the contrary. The Washington rule is now consistent with federal case law on this issue. See, e.g., Howard v. Gonzales,658 F.2d 352, 356 (5th Cir. 1981).

The following subsections discuss the critical requirement that issues be raised in a timely fashion and that there be an adequate record showing that each issue was raised and the manner in which the trial court resolved it.

(1) Objections in the trial court must be timely

Timeliness is a cornerstone of preserving error. An appellate court usually will not consider an objection, or an argument or theory in support of an objection, not raised in the trial court in a timely fashion. See, e.g., Seth v. Dep't of Labor & Indus.,21 Wn.2d 691, 693, 152 P.2d 976 (1944) ("We have held in many cases that an objection to the admission of testimony will not be considered by this court on appeal if it is not timely made in the trial court." (citations omitted)). This is consistent with CR 46, providing that a party should make known its objection "at the time the ruling or order of the court is made or sought." Timeliness is central to many of the decisions cited in §11.7 below ("Particular applications of the general rule and its exceptions"). Except for certain flagrant violations (see, e.g., §11.7(11) "Misconduct of opposing counsel"), if timely intervention would have given the trial court an opportunity to cure the alleged error, and such intervention was not attempted, the issue will be lost.

Both CR 46 and the relevant case law recognize that circumstances may sometimes prevent a party from making a timely objection. For example, a witness may answer an objectionable question too quickly for an objection to be interposed, or the answer may be unresponsive to an otherwise appropriate question. In such circumstances, it is acceptable if the objection is made as soon as the basis for the objection becomes apparent. See §11.7(1)(a)(i).

If, in the heat of the moment, counsel has identified one or more reasons for taking a particular legal position and later, upon further reflection, thinks of additional reasons, counsel should take whatever steps are necessary to place the additional reasons on the record. As long as the matter has not gone "beyond recall," the additional reason or theory probably will be preserved for review. See, e.g., Seth, 21 Wn.2d at 693; see also State v. Gallo,20 Wn.App. 717, 728, 582 P.2d 558 (belated objection and motion to strike allowed if inadequate time to interpose objection before answer), review denied, 91 Wn.2d 1008 (1978). In the last analysis, the determining factor as to the viability of an argument on review is whether the trial court had a timely opportunity to pass upon the question.

There will sometimes be a price to pay for making a timely objection. To preserve a particular issue for review, an attorney may risk calling attention to unfavorable evidence, disrupting the cadence of the trial, or irritating the court or jury. Trial counsel must weigh carefully any such tactical disadvantage against the possibility that the failure to make a timely objection may foreclose consideration of the issue on review.

(2) Importance of making a record of what happened in the trial court

Not only must an objection...