United States: A Former Appellate Court Judge Offers Tips To Trial Attorneys

Last Updated: September 26 2016
Article by Adriana Gardella

While trial attorneys know they must preserve issues they wish to raise on appeal, they often overlook the basic steps required to help ensure appellate review. During more than 27 years on the bench, former Florida appellate court judge and Carlton Fields shareholder Chris Altenbernd saw attorneys make the same mistakes repeatedly. Based on those observations, he shared tips for trial attorneys during a recent conversation, which has been edited and condensed.

Q. What should attorneys keep in mind when seeking to preserve error?

Mr. Altenbernd: The very first basic thing lawyers need to understand is that this process puts the other side on notice of your position and also gives the trial judge an opportunity to correct the problem in the trial court. If the judge doesn't have a fair opportunity to correct an error, then it seems a little unfair to reverse that judge and reopen the judgment.

Q. What preservation errors did you commonly see as a judge?

Mr. Altenbernd: In the middle of a trial a lawyer may simply object and give no reason for the objection, or merely give a one-word explanation. That action may not explain to opposing counsel or the judge what the lawyer is objecting to, and what relief they want.

Q. How specific must the objecting lawyer be to preserve an issue?

Mr. Altenbernd: Undoubtedly, appellate judges take somewhat differing approaches to this. Some appellate court judges have a heightened sense of what's required, and others have a somewhat looser sense. As a lawyer you need to be aware that you are likely to get the judge with the heightened sense. So, you need to be as careful and thorough as possible.

Q. Can you offer any generally applicable guidelines as to the specificity of objections?

Mr. Altenbernd: Two things. First, the more advance notice a lawyer has of a problem, the more likely it is that the judge will expect a full and complete objection detailing what the lawyer thinks should be done differently. For example, if a lawyer objects to something in a pleading, the judge will consider that the lawyer had the opportunity to slowly read the pleading and think about the objection. Second, when the problem deals more with the procedure of the case than with its substance, the rules tend to require a heightened level of preservation. For example, if there's a problem related to picking the jury and three weeks of otherwise perfect trial go by, the court is going to expect that you jumped through all the hoops necessary to preserve your claim regarding a jury selection problem.

Q: When is this best time to raise preservation issues?

Mr. Altenbernd: Every lawyer is trained to raise them contemporaneously. But the truth is, if you plan ahead and think about your case, there are lots of things you can do earlier—pre-trial, for example. So, let's say you have concerns about the admissibility of scientific evidence. You should file motions to determine the admissibility of the evidence under the new Daubert requirements well before trial. The lawyers who wait and try to object contemporaneously in the courtroom invariably do it poorly and also annoy the trial judge. While some lawyers file way too many so-called 'boilerplate' motions in limine, if you have specific issues as to what must be kept out of evidence or away from the jury, it's a good idea to try to get them resolved through a motion in limine.

Q. Are there any tools that can help trial lawyers to be prepared?

Mr. Altenbernd: There are certain things you ought to have in a trial book that you take to court with you every time you go to trial. For example, one issue that commonly recurs is how to preserve an objection either when the court denies a motion to strike a juror for cause, or grants the other side's. Likewise, you may have a similar problem with a peremptory challenge to a juror. There are multiple steps a lawyer must take to preserve such errors. But very few lawyers will know each and every one of those steps on the fly. There's no reason not to have a trial book with you that helps ensure you know the steps to take when an issues arises. Anybody who's preparing for trial has at least a sense of the admissibility issues they're going to face with any particular witness, whether the issue is hearsay or something else. You'll present your argument far more effectively, and it will be better preserved, if you simply put a folder into your trial notebook that's specific to the issue you anticipate. Unfortunately, many good lawyers think they can forego that kind of preparation.

Q. What issues are particularly likely to arise for defense counsel?

Mr. Altenbernd: If you represent the defendant, at the end of the plaintiff's case you'll move for a directed verdict. There's really no reason why you can't write down, at least in outline form, what you want to include in that motion ahead of time—all the elements of the defense in a criminal case, or the requirements of the civil cause of action.

Q. Why are these seemingly preventable mistakes so common?

Mr. Altenbernd: Some lawyers don't think things through as well as they should. Some are too busy, especially in a criminal setting where the prosecutors and public defenders have so many files that it's hard for them to give each sufficient time. Sometimes a lawyer has a tight trial budget and doesn't think he can afford to spend the time on these things. But there's money, and then there's malpractice.

Q. Once a lawyer objects during trial, what must happen next?

Mr. Altenbernd: When you object to something, you have to make sure the trial court actually rules. There are many trial judges, who either intentionally or by  temperament, don't directly rule on an objection. The lawyer has to be persistent about attempting to get a ruling. 'Sustained' or 'overruled' are words that usually need to be in the record.

Q. What should a trial attorney do once the judge sustains an objection?

Mr. Altenbernd: If it's still harmful and you plan to seek relief on appeal, you need to move for a mistrial, or for something that corrects the problem. 'Sustained' is supposed to mean that you won the objection and have prevented the potential harm. If the harm still exists, you need to do more. Without a motion for mistrial or a motion to correct the problem, you have nothing for your appeal. On the other hand, many lawyers move for mistrial and immediately ask the judge to defer ruling on the motion until the end of the trial. This causes most appellate judges to think they weren't all that serious about the mistrial.

Q. Once a trial judge rules that testimony will not come into evidence, what steps must the lawyer take?

Mr. Altenbernd: Many lawyers either forget, or get sloppy about the requirement that the record must demonstrate what the witness would have said if allowed to testify. That means the lawyer needs to proffer the evidence.

Q. What's the best way to do that?

Mr. Altenbernd: The formal way is to actually put the witness on the stand, ask them questions, and get their answers. But most judges, understandably, don't want to do that in the middle of a busy trial. The best way around that is to ask the judge if you can do the proffer during the next break. That way you get the complete information you need. What often happens is a lawyer says upfront, 'Let me tell you what the witness would say' and then gives a summary description of what the testimony would be.

Q. Why is that problematic?

Mr. Altenbernd: Unless the other side expressly agrees that your description is a proper proffer, there are many risks that the appellate court will think it was inadequate to prove what the witness was going to say.

Q. What other types of reversible error do lawyers sometimes overlook?

Mr. Altenbernd: Lawyers must be aware of their environments and take the necessary steps to ensure the transcript reflects what's going on. Many courtroom errors involve activities that are not sounds a court reporter takes down. For example, a juror may be sleeping, a judge may keep rolling his eyes in front of the jury in reaction to evidence, the plaintiff's spouse may be acting like a cheerleader, people in the front row may be trying to influence the case. And, sometimes it's nothing that egregious. For example, a witness may have an exhibit in front of him and say that "right here it says this is the answer." Well, right where? A lot of times when people are handling exhibits, such as photographs, the description in the transcript doesn't allow you to pick up the document and understand what they were referring to. The all-too-common failure to preserve evidence that appears temporarily during trial—for example, a diagram written on a whiteboard—is particularly surprising and easy to avoid.

Q. How should attorneys preserve this type of evidence?

Mr. Altenbernd: In this day and age, there's no reason you can't take a digital photo that will remain in the record once the board, for example, is wiped clean.

Q. What are your thoughts on post-trial motions?

Mr. Altenbernd: While there are some things you can raise on appeal even if you don't file a post-trial motion on the subject, there aren't  a whole lot of tactical reasons to forego your post-trial motion. Even if it isn't essential, it is one more step that can help you clean up your argument and give the trial judge one last opportunity to correct a mistake. If you file a post-trial motion, you just may win it.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions