Trying Your Case to Win on Appeal
| Publication year | 1998 |
| Pages | 12 |
Debra J. Moore, J.
In the midst of a trial we were handling together, a talented trial lawyer once told me, "I try my cases for the trial court, not for the appellate court." After handling primarily civil appeals rather than trials for the last five years or more, I still agree with that advice. I also noticed, however, that my colleague had a solid record of winning cases both at trial and on appeal. Only rarely are the two goals incompatible. Well-prepared trial lawyers know how to try their cases to maximize the chances of affirmance if they win at trial and to minimize the chances of reversal if they lose.
Knowing how to protect the trial record and to preserve error is even more important today than when my mentor tried his first case. As their dockets have grown, appellate courts have become increasingly strict in applying the requirements for preserving error. This strict approach is particularly pronounced at the intermediate level of appeal, where the most crowded dockets are found. A few suggestions for preserving error in the Utah trial courts are presented below
1. KNOW HOW TO RAISE A SUBSTANTIVE ISSUE
The key to preserving a substantive issue for appeal is providing the trial court a meaningful opportunity to rule on the issue. Providing such an opportunity requires more than asserting a claim or defense in a complaint or answer, and making "nominal references" to the issue at a hearing. Mills v. Brody, 929 P.2d 360, 364 (Utah Ct. App. 1996) (declining to address estoppel defense raised in answer and mentioned at hearing, when party failed to provide trial court with any legal authority). See also State v. Yoder, 935 P.2d 534, 543 n.6 (Utah Ct. App. 1997) (declining to address state constitutional argument). Rather, a party must satisfy three requirements:
(1) the issue must be raised in a timely fashion;
(2) the issue must be specifically raised; and
(3) a party must introduce supporting evidence or provide relevant legal authority.
Hart v. Salt Lake County Comm'n, 945 P.2d 125,130 (Utah Ct. App. 1997), cited with approval in Badger v. Brooklyn Canal Co., 1998 WL 372137, *3 (Utah 1998). The purpose of these three requirements is to "put[] the judge on notice of the asserted error and allow [] the opportunity for correction at that time in the course of the proceeding." Borberg v. Hess, 782 P.2d 198, 201 (Utah Ct. App. 1989). To asses the second and third requirements, the court of appeals sometimes applies a "level of consciousness" test, declining to review issues that were not brought to the trial court's "conscious awareness or attention." State v. Brown, 856 P.2d 358, 361 (Utah Ct. App. 1993) (declining to review constitutional over breadth challenge when defendant failed to bring issue to the trial court's "conscious awareness or attention"); see also Mills v. Body, 929 P.2d at 364. Failure to raise an issue to the level of the trial court's consciousness may preclude review even when the record contains some...
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