Preserving appellate rights at trial and in post-trial proceedings.

• Author: Pierce, Gerald W.
• Position: Florida

This column provides a short course for avoiding embarrassing mistakes. Regardless of the result at trial, your case may be won or lost at the appellate level.

As a trial lawyer, you certainly do not want to waive your client's appellate rights unintentionally. Nonetheless, the same types of unintended waivers seem to occur regularly in Florida courts, even with experienced trial counsel. A review of the most common mistakes may help you avoid unintended waivers.

The Trial Begins

Perhaps the most complicated procedure for preserving an objection occurs with jury selection. If you want to preserve the right to appeal the trial court's refusal to excuse a juror for cause, you must exhaust all of your peremptory challenges, request additional challenges, and identify the juror which would have been stricken with the additional challenges.(1) Although you may feel that you have preserved the error by jumping through these hoops, you waive the objection if you subsequently accept the jury without renewing the objection or conditioning the acceptance of the jury on the objection.(2)

If the trial court rules against your client on a motion in limine, you may think you have preserved the ruling for appellate review. You probably would be wrong. It is generally held that an offer of proof of evidence excluded by an order in limine must be made at trial in order to preserve the claim of error.(3) Similarly, when you unsuccessfully move in limine to exclude evidence, you must also object to the introduction of that evidence at trial.(4) The general rule for motions in limine is a product of an adherence to the principles of the contemporaneous objection rule.(5) The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors, and it also prohibits counsel from intentionally allowing errors to go uncorrected as a trial tactic.(6) There is authority for the proposition that it is not necessary to make an offer of proof at trial if an adequate record of the excluded evidence has been made at the hearing on the motion in limine.(7) Make the offer of proof anyway.

Evidentiary Rulings

One of the guiding principles of appellate review is found in F.S. 90.104 [pounds sterling](1)(a) (1997), which provides that an error in the admission of evidence is not preserved without a timely objection stating the specific ground if the specific ground is not apparent from the context. The objections "improper predicate" and "lack of foundation" are not specific grounds within the meaning of [sections] 90.104.(8) If you want to complain about an "improper predicate," you must put the court and the opposing party on notice of the specific problem with the predicate so that the problem may be disposed of quite simply by putting one more question to the witness.(9)

It is not unusual for an appellate court to review a transcript which contains a proper objection but no ruling by the court. The court and counsel may discuss the objection, and that discussion may simply trail off into nothingness. It is the duty of the objecting party to obtain a clear ruling in order to preserve an issue for appeal.(10) If the trial court does not make a ruling, there is nothing for the appellate court to review.(11) If the trial court deliberately and patently refuses to rule, the objection is preserved.(12)

If you want to have the appellate court review a ruling excluding evidence, you must make the substance of the evidence known by offer of proof, unless the substance was apparent from the context.(13) Under Fla. R. Civ. P. 1.450(a), there must be a specific offer of the evidence, and the record must clearly show the character of the evidence. Documentary evidence must be marked for identification, offered into evidence, and filed with the court.(14) Without an offer of proof, it never occurred as far as the appellate court is concerned.

After the Parties Rest

If you want to preserve the question of improper argument of counsel in opening or closing, you must make an immediate objection.(15) The objection must be coupled with a motion for mistrial, which must be made prior to the retirement of the jury.(16) The trial court can wait for a verdict before ruling on the motion for mistrial.(17) If an objection to argument is overruled, it is preserved for appeal without the necessity of moving for a mistrial.(18) Forget about "fundamental error."(19)

The "two-issue rule" occasionally traps unwary litigators. Where there is no proper objection to the use of a general verdict form, reversal is improper where no error is found as to one of the issues submitted to...