Chapter 3 Preserving Error

• Library: Handling Appeals in Arkansas (2021 Ed.)

CHAPTER 3 PRESERVING ERROR Rodney P. Moore

A. Introduction

Great trial lawyers are often viewed as tapestry artists — masterfully weaving lines of facts and law into eloquent and persuasive arguments right before the watchful eyes of jurors. This image is pervasive in professional literature: The Art of Trial...The Art of Winning...The Cross Examination Artist...and the like. But there is another trial art that is often missed: sculpture. Skilled trial lawyers are sculpting error in the record, preserving it for all to admire. And after a heart-felt loss at trial, there is nothing quite so beautiful as a well-sculpted error that may be argued to a new court on appeal.

Trials are a human endeavor, and error occurs. But it goes unnoticed and is useless to the client unless the trial lawyer brings it to light and preserves it for future use. Generally, to preserve error you must alert the circuit court to the specific error, on the record, at the right time, and obtain a ruling. You alert the court through pleadings, motions, objections, and proffers. "On the record" means a challenge to the alleged error appears in the filed papers or official transcript. The right time depends on the issue, but in most instances it means alerting the circuit court to an error more or less simultaneously with the error's occurrence. The sooner the better. This rule's purpose is to allow the court a chance to correct the error before legal damage is done to the case.

Aside from the beauty and artistry that good advocacy embodies, why must error be preserved? The appellate courts will not consider an issue on appeal unless it is properly raised and preserved in the circuit court. Perry v. Baptist Health, 368 Ark. 114, 118-19, 243 S.W.3d 310, 314 (2006); Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 414, 947 S.W.2d 780, 785 (1997). Arkansas does not apply the plain-error rule under which plain errors affecting substantial rights may be raised on appeal although they were not first brought to the circuit court's attention. Lovelady v. State, 326 Ark. 196, 199, 931 S.W.2d 430, 432 (1996). Simply put, without preserving the error there will be no effective appeal.

B. Start with a Vision

All art begins with a vision, and preserving error is no different. From the early stages of the litigation, issues need to be identified, researched, and analyzed. Only then will you be prepared to make a sculpture of any error that may arise.

The following questions should help in developing your vision:

• What are the material legal issues in the case?

• Who has the burden of proof on which issues?

• What objections might the other side make to my evidence?

• What objections should I make to their evidence and how will the client be prejudiced by an adverse ruling?

• Which jury instructions are proper for this case?

• Which jury instructions are improper? Why?

Once you have answered these questions (and others that might pertain to your case), you can begin developing a plan for preserving error. Your plan will dictate positions you take in pleadings, pretrial motions, objections, the directed-verdict process, and instructing the jury. So plan early. Remain alert and revise the plan as needed.

C. Shape Your Vision with Pretrial Tools

During the pleading stage, key issues may be preserved through the use of pleadings and motions. Some issues can be waived if not preserved in pleadings and motions.

1. Establish a Foundation in the Pleadings

• Raise all applicable defenses in the answer. Failure to properly assert a defense waives the right to raise it on appeal and may hinder your evidentiary record in the circuit court, a problem that follows you on appeal. See, e.g., Jones v. Runsick, 2013 Ark. App. 356, at 6-7 (boundary by acquiescence must be affirmatively pleaded though not listed in ARCP 8(c)); Dunklin v. First Magnus Fin. Corp., 79 Ark. App. 246, 249-50, 86 S.W.3d 22, 24-25 (2002) (insufficiency of service of process waived if not asserted in initial pleading).

• All counterclaims that arise out of the same transaction or occurrence as the subject matter of the opposing party's claim must...