Preservation of error is an issue that is discussed so frequently by appellate lawyers that it tends to be met with eye rolls by other lawyers. However, we keep talking about preservation of error because it is one of few things that can kill an appeal before it ever gets addressed on the merits. For this reason, appellate lawyers can add value to a trial team by ensuring that errors made at trial are properly preserved for appeal–freeing up trial laywers to focus on evidence, testimony and other substantive matters.
A recent case out of the Fifth District Court of Appeal underscores, yet again, the importance of proper preservation of error. Hang Thu Hguyen d/b/a Millenia Day Spa v. Wigley, No. 5D13-1925, 2014 WL 2968860 (Fla. 5th DCA July 3, 2014). Plaintiff Wigley filed a lawsuit against Millenia seeking damages for injuries sustained during a paraffin wax manicure. During closing argument, Millenia’s counsel made certain statements that Plaintiff’s counsel deemed improper. Plaintiff’s counsel objected that the statements were improper, and those objections were sustained by the trial court. Plaintiff asked for a curative instruction with respect to one of the objectionable statements, and the trial court granted the request.
After the jury returned a Plaintiff’s verdict ascribing 80% of fault to the Plaitniff, Plaintiff filed a motion for new trial based on the improper remarks made by Millenia’s counsel during closing. The trial court granted the motion for new trial, but the Fifth DCA reversed. Why? Because, in objecting to Millenia’s statements, Plaintiff’s counsel never asked for a mistrial.
“When a party objects to instances of attorney misconduct during tial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for a new trial.” Companioni v. City of Tampa, 51 So. 3d 452 (Fla. 2010).
Because the Fifth DCA found no fundamental error in the defendant’s closing arguments, there was no support in the record for a new trial, and the trial court order granting a new trial was reversed.
Even the most seasoned trial lawyers, in the heat of battle, can and do get hung up on these technicalities in the law. In high stakes litigation especially, best practices would dictate that at least one lawyer be assigned to focus on preservation of error issues during the trial.