Hiring an appellate lawyer for an appeal is a good idea. We're uniquely qualified to recognize issues that can help you preserve a good result or reverse a bad one. But all too frequently we discover that winning arguments didn't get adequately preserved below. Not only did trial counsel let go of an issue that might win on appeal, but they also gave up an opportunity to potentially change the course of proceedings in the trial court to the client's advantage. Below are some of the most common circumstances in which we see error waived[1] and reminders on how to deal with them.
Affidavits. Because affidavits are particularly common in summary judgment practice, don't forget to obtain a ruling on your objections to the other side's affidavits. Many objections (including to the competency or "personal knowledge" of the witness, hearsay, missing attachments, and best evidence) are waived if you don't get a ruling.
Attorney's Fees. Challenge the opposing party's testimony about fees, particularly as to segregation. Also remember that some attorney's fee statutes have certain preconditions that must be met for recovery of fees, presentment for example.
Continuances. Remember that motions for continuance must be supported by an affidavit. If the affidavit is missing, make a record and get a ruling.
Evidence. Always explain specifically why the opposing party's evidence is objectionable. At trial, make sure the court actually rules on your objection ("let's move along" doesn't count). If your own evidence is excluded, don't forget to make an offer of proof before the case is submitted to the jury.
Experts. Many objections to expert testimony are waived if not made when or before the testimony is offered, especially objections to the reliability and relevance of the expert's opinions. Be sure to get a ruling either in writing or on the record at trial.
Jury Charge. It's not news that the charge contains many traps for the unwary. There are myriad issues to spot and the process for raising them can be complicated and tedious. The ultimate test for preservation, as articulated by the Texas Supreme Court, is perhaps deceivingly simple: "[Make] the trial court aware of the complaint, timely and plainly, and obtain[] a ruling." Objections must be specific and made on the record or in writing by the deadline set by the court or before the charge is read to the jury, whichever is earlier, and ruled on. Requests must always be made in writing, by the same deadline, and endorsed with the court's ruling.
Of course, you should also consider involving an appellate specialist before or during trial. We can help spot potential issues and prepare you to deal with them. Not only will it improve your chances on appeal if one occurs, but it might just help you win the case in the first place.
Footnotes
[1] Special thanks to Steven Hayes of Fort Worth, who recently presented his findings on the most common failures in error preservation at the 2015 Texas Bar CLE Advanced Civil Appellate Practice Course.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
