THE TRIAL MONITOR’S CORNER: “What Else You Got?”—Potentially Unpreserved Error

Trial attorneys are gifted specialists, experts at how to conduct a trial through repeated exposure and repetition. With increasing specialization in the legal field, however, they rarely have exposure to the various pitfalls or missteps that can result in unpreserved error on appeal.

An example of this occurred in one of our recent assignments acting as appellate monitoring counsel at trial. Plaintiffs’ counsel presented what the defense team considered to be a bloated package of life care damages. Defense counsel raised specific objections to the various components deemed objectionable. The problem arose in the judge’s response on each item, which varied from “What else you got?,” to “Next?,” to “Ok…” The judge, however, never stated “denied” or “overruled” and his responses did not deliver a ruling on the merits on any of these issues. The general rule is that a party needs not only to object, but to obtain a definitive ruling on the record in order to preserve a claim of error. Without a definitive ruling on the record, there is nothing for the appellate court to review.

After alerting defense counsel to the issue and discussing how to handle the matter, he subsequently spoke with the judge on the record, getting him to clarify that he had indeed denied all of the objections on the damages issue. By such action, a potential waiver involving hundreds of thousands of dollars in damages was averted.

Practice Pointer

Making a timely and specific objection is only one part of the “preservation of error” equation. The second equally important part of that “equation” is to always obtain a definitive ruling from the court on the record to preserve issues for appeal. As the foregoing shows, appellate trial strategists can assist in preserving error and in ensuring defense arguments and theories are in the best position for success on appeal. To learn how the Appellate Practice Group’s trial monitoring expertise might assist you in eliminating and/or reducing liability exposure at trial, please contact Joe Ferrini at jferrini@clausen.com.