Utah Appellate Law Update
| Publication year | 2013 |
| Pages | 20 |
| Citation | Vol. 26 No. 6 Pg. 20 |
November, 2013
PRESERVING ISSUES IN UTAH APPELLATE COURTS
Noella A. Sudbury
The preservation rule is "an essential part of our adversary system, " In re Baby GMT., 2012 UT 78, ¶ 42, 298 P.3d 1251, and whether or not advocates like it, preservation is always on the appellate court's mind. At the Utah State Bar Convention in July, Utah Supreme Court Justice Thomas Lee and Third District Court Judge James Blanch participated in an hour-long panel discussion exclusively devoted to preservation. The room was packed with lawyers who were full of questions.
So, what is there to talk about? While the preservation rule has been part of Utah's case law for several years, and its requirements are fairly straightforward, failure to preserve issues in the trial court continues to be a routine barrier to appellate review. Since January, approximately fifteen percent of the Utah Supreme Court's issued opinions have involved a preservation question. In the Utah Court of Appeals, this percentage is closer to twenty-five. In an environment where a lawyer stands a one-in-four chance of facing preservation problems on appeal, it is increasingly important for trial lawyers to understand what is required to preserve an issue in the trial court.
Under the preservation rule, counsel must present an issue "to the district court in such a way that the district court has an opportunity to rule on that issue." Id. ¶ 35 (citation and internal quotation marks omitted). This requires counsel to make a "timely" and "specific" objection, on the record, with evidence and legal authority to support it. Id. Though simple sounding, the preservation rule requires counsel to be on his or her toes, to provide objections with as much detail as possible and to follow through with his or her objections until they are complete with cited authority and the trial court has issued a ruling on the issue. The following three tips will help lawyers avoid common preservation pitfalls, making it more likely that an appellate court will reach the merits of the case.
The Objection Must Be Timely.
Timeliness is of utmost importance. The Utah Supreme Court has held that counsel must object when "the iron is hot." See, e.g., State v. Harris, 2012 UT 77, ¶ 17, 289 P.3d 591. In other words - once the unfavorable evidence is admitted, or the jury is sworn, or the instruction is given - it is too late to make an...
To continue reading
Request your trial