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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.