Chapter § 2.11 Preserving Arguments for Appeal

• Jurisdiction: United States
• Publication year: 2020

§ 2.11 Preserving Arguments for Appeal

Planning for trial necessarily means planning for post-trial proceedings. Preserving objections for post-trial motions or an appeal can make or break a case. Failure to make timely objections and motions means a party with an unfavorable trial court judgment has no recourse and must live with the consequences. A well-prepared plaintiff, however, will balance the demands of trial with the need for preserving post-trial options. As discussed below, several avenues are available to preserve a party’s argument for appeal.

[1] Objections and Offers of Proof

Failure to make objection to an issue generally results in waiving that argument on appeal. Objections may be made to virtually everything that occurs at trial, from the admission of evidence, to witnesses, to jury instructions. Ordinarily, a party does not preserve its arguments for appeal unless it has made a contemporaneous objection at the time the objectionable subject matter is introduced.¹²⁵ In some instances, such as objecting to jury instructions, the Federal Rules of Civil Procedure specifically instruct when and how to make a timely objection.¹²⁶ Because objections must generally be made quickly, the plaintiff must be prepared.

Not every piece of objectionable evidence should prompt the plaintiff to object at trial. Instead, a plaintiff must make tactical decisions prior to the start of trial about those objections that it can make and those objections that it should make. This is particularly true when the plaintiff’s case is before a jury, as juries undoubtedly make assumptions about parties that repeatedly and unnecessarily object at trial, and what those objections may say about the strength of the objecting party’s own case. By making selective objections that are consistently sustained, however, the plaintiff sends a message to both the judge and the jury about its own competency.

Selectivity in objecting, however, must be balanced against the importance of preserving arguments for appeal. Failure to make evidentiary objections in the district court ordinarily results in those objections being waived for the purposes of appeal.¹²⁷ Prior to trial, therefore, plaintiffs’ counsel must evaluate and identify the evidence that is most damaging to one’s case and to determine the appropriate legal basis for objecting to that evidence. Likewise, anticipating the objections that will be lodged against the plaintiff’s own evidence will place the plaintiff at an advantage in ensuring that its case is fully presented.

Offers of proofs, on the other hand, must be made to preserve appeal arguments regarding the exclusion of evidence.¹²⁸ When the court sustains an objection to the admission of evidence, the party offering the evidence may make an offer of proof—informing the court of the substance of the evidence that was excluded from admission. Offers of proof are necessary whenever the substance of the excluded evidence is not apparent from the context of the question.¹²⁹ In this way, the party making the offer of proof preserves its claim of error for appeal and allows for more effective...