There will be cases in which victory will not be yours. In some of those cases, your client may want to appeal the court’s ruling. It is your job as her lawyer to protect this option to the best of your ability.
Bear in mind that appellate courts exist solely to review errors of law committed by the trial judge. In other words, your client cannot appeal simply because she wasn’t happy with the verdict.
Still, good trial lawyers try every case with a third eye – two eyes on the trial and the third on the record that an appellate court may ultimately review. They protect the appeal by making timely objections when appropriate and following up by a proffer when prevented from introducing evidence. Good trial lawyers get deeply familiar with the rules of procedure and evidence.
At all times during the trial, when good trial lawyers spot errors of any significance, they obtain a ruling from the judge. Without a ruling from the court, the trial lawyer has not preserved the right to appeal on that matter. Such was the fate of a lawyer who discovered what he considered to be jury misconduct. He never brought the matter to the attention to the judge. Ultimately, he found himself in court defending his omission.
This doesn’t mean that, as an alert trial lawyer, you must object to every infraction you see. Persistent objections will agitate judges and jurors alike, especially if many of these objections are overruled. A barrage of objections by you may cause jurors to think that you are trying to hide certain facts. Before you object, ask yourself: Will this objection help the case? Will it help in appeal? If not, it may be better left unspoken.
That said, certain objections are important in preserving an appeal: Be ready to object to summaries or charts coming into evidence that are not based on genuine data you have had the opportunity to inspect – or if that data is being misstated or mischaracterized by the opposing party.
Compound and leading questions, calls for a narrative, and “asked and answered” questions are often worthy of an objection, as are opposing counsel’s assumptions or misstatements of facts that are not in evidence, or that are argumentative or ambiguous.
Study the Federal Rules of Evidence, and, in particular, Federal Rule 404. This rule deals broadly with character evidence, providing that evidence of a person’s character is inadmissible to prove action in conformity with that character. It is only when character is an essential issue in a charge, claim or defense that the character evidence in question would be allowable. For example, if an individual is on trial for assault, evidence that underscores his peacefulness would be permitted. Federal Rule 404, and in particular, Rule 404 (b), which involves “prior bad acts,” is one of the most frequently cited rules of evidence. Objections can be made – and often are -- when the requirements of 404(b) are not fulfilled.
Be alert as well for times when your opponent asks a witness a question to which -- rather than answering -- the witness responds with a tangential narrative. At those points, you may need to object and ask that the testimony be stricken on the basis that the answer is not responsive or is otherwise improper. Similarly, it is your job to prevent lay witnesses from rendering opinions. Good trial lawyers will object when adverse witnesses stray from the facts of the case and into the realm of what they “think” or “assume.”
You must also object when a judge excludes your proposed jury instructions or gives a jury instruction to which you object. (Judges should give you an opportunity to make such objections at the bench.) If the judge does not grant your request to give a particular instruction, it is crucial that you include the proposed instruction in the record.
Oftentimes, trial lawyers are quick to object to comments and actions of opposing counsel and adverse witnesses, but less so when it comes to the judge’s questions. Keep in mind that objecting to a question or decision from the bench can be necessary to preserve the appeal. So too can the inclusion in the record of all exhibits. Before you rest your case, review all of the exhibits to confirm that you have not left anything out. It is a sad realization to discover, when preparing for an appeal, that the record is incomplete.
More about preserving and protecting the appeal can be found in chapter 11 of my new book, Anatomy of a Trial: A Handbook for Young Lawyers.