Addressing Preservation of Error


One of the more difficult topics to broach with a litigant who is consulting regarding an appeal is the issue of “preservation of error.”  At its core, the appellate process is concerned, not with who was right and who was wrong, but whether the trial court made mistakes.  However, that is not all that is required.  An error that is not brought to the trial court’s attention before the end of the trial, when the trial court had an opportunity to correct this mistake, is not an error the appellate court can or will review.  This technicality is something that frustrates a lot of litigants.  Frequently heard from the litigant:  “But if the trial court made a mistake, why didn’t my trial lawyer object?”  There are a lot of reasons why a trial lawyer may fail to object to (or preserve) an error.  Sometimes, it is inexperience.  Sometimes, there is a tactical reason for not raising the objection.  More frequently, however, it is that, in the heat of trial, a larger issue has the trial lawyer’s attention, and they simply are not focused on what may be an escoteric legal principle or a minor procedural issue.  It’s understandable that, especially in a difficult case, the trial lawyer is focused on winning the trial, and not thinking ahead toward the myriad of possible avenues he or she way wish to explore on appeal.  For that reason, appellate lawyers (this author included) often recommend that trial lawyers bring an experienced appellate practitioner onto the trial team early in the proceedings.  An appellate counsel at trial table can be an invaluable resourse when an appeal of the trial (by either party) is all but certain.  Of course, this recommendation can be met with eyerolls from trial lawyers who recognize that engaging appellate counsel is another expense they have to explain to a cost-sensitive client.  In hindsight, however, even the most cost-senstive clients would have gladly paid the appellate lawyer’s appearance fee at trial if it would have increased their chances of getting a reversal or a new trial before a new jury. 

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