The trial is the beginning of your appeal.

• Author: Cain, May L.
• Position: Florida

'Objection!" Ahh, that magic word that an appellate lawyer wants to see when reviewing trial transcripts for purposes of taking an appeal. Appeals do not really commence when the notice of appeal is filed; they are born at the trial level and it is up to trial counsel to set the stage for the eventual appeal. If trial counsel did his or her job properly, "objection" will be followed by a specific, legally sound reason for the objection. Otherwise, the failure to properly object will waive most objections for purposes of review by an appellate court. (1)

"Fundamental error," on the other hand, is a concept that appellate counsel does not want to have to argue, since it is used most often when trial counsel has failed to raise a proper specific objection before the trial court in order to raise an issue that has not been properly preserved for appeal. Fundamental error--error which goes to the foundation of the case or to the merits of the action--can be brought up for the first time on appeal, even without objection in the trial court. (2) However, it is an uphill battle to argue and one that should be avoided, if possible. (3)

The trial is, in fact, the beginning of the appeal, and it is most important that trial counsel realize this fact when trying a case. An appeal is only as good as the record made by trial counsel, who should see to it that every trial is recorded by a court reporter for purposes of possible review. Without a transcript, the trial court's rulings are presumed correct. (4) Trial counsel should be certain that all objections are ruled upon by the trial court. (5) An appellate court will not consider for the first time on appeal issues not presented in the trial court. (6)

It is sometimes forgotten that the initial pleading, whether a complaint or petition, is the foundation for the entire case. Failing to research and draft a legally sound complaint, petition, or information--or indictment in a criminal action--often results in the dismissal of the initial pleading, summary judgment for the defendant, judgment on the pleadings, a directed verdict, or a judgment of acquittal. The failure to timely file a motion to dismiss the initial pleading will waive objections for purposes of an appeal. (7)

Motions in limine are useful tools. Such motions are usually made prior to or at the commencement of the trial and set forth a legal basis for the inclusion or exclusion of evidence or other allegedly prejudicial material. When the ruling is made to admit evidence, trial counsel must make a timely objection or motion to strike, on the record, and state the specific ground for the objection if it is not apparent. When the motion is made to exclude evidence, the substance of the evidence must be proffered to the court or made apparent within the context of the questions asked at the hearing on the motion. Pursuant to F.S. [section] 90.104(1)(b), once the court has ruled to admit or exclude evidence, it is not necessary to renew the objection or make an offer of proof at trial in order to preserve the assertion of error on appeal. The Florida Supreme Court recently approved this legislative amendment to F.S. [section] 90.104, which had been in effect since July 1, 2003. (8) This is an important development in the law because it contradicts the long line of cases which held that one had to renew an objection at trial in order to preserve the error for purposes of appeal. At the same time, it highlights the pitfalls that can befall trial counsel when situations involve procedural versus substantive matters. (9) If a party is successful in obtaining an order in limine and the opposing party violates the order in limine during the trial, a contemporaneous objection must be made to the violation of the order in limine, because the failure to do so may result in a waiver of the argument that the evidence was improperly excluded. (10)

In a jury trial, the voir dire itself may raise issues for appeal. (11) Counsel must renew an objection to the seating of a juror before tendering the panel. Trial counsel has a duty to renew objections made during voir dire prior to the jury being sworn, in order to preserve the issue. (12) Improper questioning of prospective jurors may also form the basis for an issue on appeal--but not without a proper...