.png)
I remember listening to Justice Frank Cleckley of the West Virginia Supreme Court of Appeals, my professor for Evidence, open his first lecture with a discussion of Federal Rule of Evidence 103. As a young law student, I was surprised to learn about the requirement for preserving error, which seemed antiquated to me. Was it really necessary to call out a judge in the middle of trial, pointing out an error, when in this day and age, it should be obvious? Of course, the answer is yes.
As I have learned throughout my career, failure to preserve error is the single most common pitfall on the road to a successful appeal. While alternatives exist, such as plain or manifest error, these avenues turn the already difficult task of securing a reversal into an even steeper climb—one which could have been avoided had the error been preserved at the trial level.
Having also tried many cases, I understand why this happens. Trial advocates often feel they must balance two priorities: preserving the issue for appeal while avoiding actions that could alienate the judge or jury - whether by appearing argumentative, losing credibility, or otherwise harming their case.
Unfortunately, this approach sacrifices the future for short-term comfort. Judges are accustomed to objections, and juries, having seen enough legal dramas, generally recognize objections as part of the process rather than holding them against counsel or client. Ultimately, the rule is clear: without proper objections and preservation of error, an appeal fails before it even begins.
.jpg)
How to Preserve an Error
Like so much in law, the answer to this question is: it depends. For most issues, trial lawyers must ask themselves whether there is any realistic chance of winning the argument - especially if it involves persuading the judge to change their mind. If not (which is often the case), the best approach is to make a quick but complete objection to preserve the error and move on. Save extended arguments and sidebars for the battles you have a real chance of winning. But above all else: make the objection.
What Does a Complete Objection Entail?
Trial advocates, myself included, often feel the need to say far more than necessary. Instead, consider an approach favored by the federal district judge I clerked for:
In most cases, the judge will understand your objection and rule quickly. This approach preserves the issue while minimizing the risk of appearing defensive or overly combative in front of the jury. If the judge or opposing counsel asks for clarification, you can briefly provide it, positioning yourself as the more composed and knowledgeable advocate.
The key is to ensure your objection aligns with the issue you’re trying to preserve. Every trial attorney has encountered a case where someone objected on the wrong grounds - such as raising a relevance objection when the real issue was hearsay. An incorrect objection preserves nothing.
Avoiding Common Preservation Traps
Every jurisdiction has procedural traps which can doom an appeal if overlooked. Some of the most common include:
Trial attorneys must remain vigilant in identifying these procedural pitfalls and ensuring they are properly addressed on the record.
The Importance of a Written Record
The best way to preserve an error is through the written record. Never hesitate to spread an objection on the record by filing a document with the court. This is often the most effective - if slowest - method of ensuring an issue is preserved.
Written objections can take various forms, such as:
If practicing in a jurisdiction which limits such filings, make a motion to submit the objection in writing, explaining you wish to preserve the issue for appeal. If denied, the denial itself operates as a general objection under Federal Rule of Evidence 103(a)(1)(B), preserving the error.
Additionally, be mindful of how much preservation is enough. During trial, an objection made once is generally sufficient under Rule 103(b) and most state rules. However, if the error occurred pretrial, some jurisdictions require a renewed objection during trial. Similarly, if an offer of proof is required, ensure it is presented or at least offered. If the judge refuses to allow an offer in open court, file a written offer with the court.
The Value of Appellate Counsel at Trial
One of the most effective ways to safeguard against preservation errors is to bring in appellate counsel at the trial level. If a case involves substantial exposure, presents complex legal issues, or has other factors warranting additional resources, trial teams should consider adding an appellate attorney before trial begins.
Appellate counsel can:
The first partner I ever worked for gave me invaluable advice: the best precedent to cite is a case where the trial court did exactly what is happening in your case—and was reversed.
Hiring appellate counsel at the trial level is a form of insurance. While it may involve an up-front cost, it ultimately saves time and expense on appeal by ensuring the record is properly preserved from the outset. The client benefits from having an appellate attorney who is both detached enough to provide fresh perspective and familiar enough with the case to avoid working from a cold transcript.
Make the Objection
An unpreserved error is worthless on appeal. Trial attorneys must be proactive in recognizing potential appellate issues and ensuring they are properly raised, ruled upon, and preserved for review.
There is nothing worse than having a perfect appellate issue - one so prejudicial it demands reversal - only to discover it was never preserved and is now lost.
No matter how it may look to the jury or how the judge may react, make the objection. Your client's right to appeal depends on it.
