By Steve Posner

The Posner Law Firm

(303) 679-9841

Appellate courts apply various filters avoid having to decide issues on the merits. The most important of these is the theory that an error not objected to at trial is not properly "preserved" for appeal. Here are ten rules of thumb for preserving your issues. You may find it handy to have this sheet with you at trial.

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1. If you think the court errs in admitting evidence, object. Be specific enough to give the trial court a meaningful opportunity to correct its error. Make sure you lay all grounds for objection before the trial court. The appellate court won’t let you raise new issues after trial.
2. If the court denies your motion in limine to exclude evidence, object. It’s not always necessary, but in some jurisdictions it is, and nothing is lost by making the objection. Again, be specific.
3. If the court denies your motion in limine, be careful before you introduce the evidence yourself in an attempt at damage control. In many jurisdictions, you will waive your objection to the admission of the evidence by doing so. This is not true in the Tenth Circuit, but theirs is a minority view.
4. Don’t rely on the objection of co-defendant’s counsel to preserve your issue. Lodge your own objection.
5. If opposing counsel persuades the court to admit evidence subject to future proof of relevance, and then fails to submit proof of relevance, move to strike.
6. If a document is admissible in part and inadmissible in part, specifically identify the inadmissible part in your objection.
7. If the court refuses your proffered jury instruction, object before the jury begins deliberations. Merely proffering the instruction won’t preserve the issue.
8. If you don’t like the jury instructions given by the court, object before the jury begins deliberations.

This list was extrapolated from Williamson & Evans, Preserving the Record for Appeal, 28 The Colorado Lawyer, No. 11 @ 63, November 1999.