Striking a balance to win: balancing the need to win the trial with the need to preserve the record on appeal.

• Author: Davis, Christine R.

All trial lawyers begin a case with one goal in mind--win the trial. Sometimes the quest for success at trial, however, comes at the expense of preserving the record for appeal. Failing to preserve the record can be fatal to the ultimate outcome of the case. Even if you win the trial, if you have not adequately preserved the record on appeal, you may lose the appeal. Thus, your client's case is ultimately lost.

"Experienced trial counsel--who are quite naturally focused on the immediate concern of a favorable verdict--sometimes overlook aspects of making the record, and they allow what would otherwise be a powerful issue on appeal go by the wayside." (1) They often do not realize that preserving the record can actually help them win at trial by making clear to the trial court what the right ruling must be. (2)

On the other hand, some trial lawyers adopt a strategy that is principally directed to protecting the record for appeal but pays little attention to the effect of an objection on the jury. (3)

Ever fearful of failing to preserve evidentiary error for appellate court consideration, the lawyer's mission is to make sure that the court reporter has recorded his or her objection to any judicial blunder, mistake or impropriety that might conceivably bring relief. But even where objections have been properly preserved, the chances of appellate relief are--as the old joke goes--two: slim and none. (4)

Thus, trial lawyers must strike a balance between the need to win the trial and the need to preserve the record for appeal. Most lawyers are well aware that a case is not over even though the trial has concluded. Absent a settlement, the case may likely be appealed. However, in the absence of fundamental error, (5) a reversal will not be obtained nor a win preserved unless the error has been brought to the trial court's attention and preserved for appeal. The function of appellate courts is error correcting: To review errors allegedly committed by the trial court, not to entertain issues that the complaining party could have and should have presented below, but did not. (6)

Preserving the record for appeal should be on the mind of trial lawyers at all stages of the proceeding, just as much as the desire to win the trial. This article, however, does not address how or when to preserve error in the record for appeal, as this topic has been fully addressed in previous articles. (7) Instead, this article addresses five factors that trial counsel should keep in mind to balance winning the trial and preserving the record. Finding the appropriate balance involves weighing fundamental tactical and legal issues. While counsel may ultimately decide to waive an issue as a trial strategy, he or she should do it knowingly and intelligently, not accidentally. (8)

1) Preparation

Preparation is the most important aspect of winning a case, and it is a critical component to effectively and efficiently preserving the record for appeal. Thorough knowledge of the facts of the case and the law applicable to every issue in the case will enable trial counsel to anticipate what will happen at all stages of the trial. Knowledge of the applicable law does not stop at the law relating to the causes of action alleged; it also involves being totally familiar with the law relating to smaller technical issues that may arise, particularly evidentiary issues.

Preparation is also the key to adopting an effective trial strategy. Trial counsel who have thoroughly analyzed the goals they need to achieve will be able to respond quickly when faced with the question of whether preserving a particular error will affect counsel's chances of winning the case before the judge or jury. During the fast-paced setting of a trial, lawyers do not have the luxury of thinking through each and every issue that arises. The more prepared the lawyer is, however, the more quickly the right decision can be made.

Trial counsel who is ready for anything and has thought ahead can strike the balance between preserving the record and waiving a potential appellate issue to win the trial or, at a minimum, win favor with the jury. With proper preparation, counsel will be ready when the question arises of whether to object. The issue will be well thought out, and the reaction will be appropriate. Counsel will be intimately familiar with what grounds are critical to raise and what would never be a basis for appellate relief.

2) Know Your Standards of Review

Trial lawyers often leave appellate issues, such as standards of review, to appellate lawyers. Why would trial counsel need to be familiar with standards of review? The thinking goes: As long as trial counsel is focused on introducing or excluding evidence where necessary, making necessary objections, and raising the arguments required to win the trial, appellate lawyers should worry about winning the issue on appeal.

To the contrary, familiarity with the standards of review applicable to issues that arise in trial can greatly assist trial counsel in striking the proper balance between winning the trial and preserving the record for appeal. The criteria by which the appellate court will evaluate an issue can guide counsel in ensuring that the record is properly developed. If the record is not preserved in a way amenable to proving the error under the applicable standard of review, you lose. It can also guide the lawyer's decision on whether the issue should be preserved when the issue is of questionable importance or relevance and has the potential to adversely affect the trial.

The correct standard of...