Thinking about an appeal during litigation may seem like preparing for failure. Indeed, it sounds counterproductive or downright pessimistic. However, keeping an appeal uppermost in your mind throughout your case is not preparing for failure so much as sharpening your knives.
Appellate courts hate to overturn lower court decisions, but if you have a strategy that includes preservation of error, you give yourself the best opportunity to win an appeal. Let’s take a look at the notion of preserving an issue or error for appeal.
What it Means to Preserve an Issue
Preserving an issue for appeal is called preservation of error. It’s a way to give your judge an opportunity to correct a mistake before it goes to a higher court for review.
Here’s an example, let’s say your judge barred a material witness from being deposed, and there’s a clear statute that says it’s error for the judge to do that. If you say nothing about it during the case, you can’t bring the issue up later. You haven’t given the judge an opportunity to rule on it. Thus, you haven’t preserved it.
If a lawyer misinterprets a statute, and you don’t object, you’ve lost the opportunity to complain on appeal. An appellate court won’t care if you’re right.
Appeals in General
An appeal is a review of a lower court’s decision by a higher court. It begins when a judge makes a ruling, and the losing party, believing the order is wrong, seeks review of the order. There are two types of appeal–an appeal as a right (direct appeal) and a discretionary appeal.
When you get to the end of a trial court case, and there’s a judgment, the losing party typically has a mandated right to challenge it. This is called an appeal as a right. The higher court must review the order.
An interlocutory appeal is an example of a discretionary appeal. A party brings an interlocutory appeal when she feels that a ruling is so harmful to her case that she must stop in the middle of litigation and seek review from a higher court. An interlocutory appeal is called discretionary because it requires the approval of the higher court. You don’t have a right to one. The higher court can decline to review the order.
What Issues Do Appellate Courts Consider?
An appellate court might correct a mistake made by the lower court where that mistake changed the final decision or where factual findings are very different from the evidence presented.
Witnesses, new arguments, and new evidence are generally not allowed in appeals. In addition, an appellate court will not overturn (1) factual findings by a judge, (2) decisions where the losing party simply didn’t like the verdict, and (3) cases where issues were not raised in the lower court. Point number 3 is the only one of these you can do something about.
On appeal, a court will review the record or collection of documents filed during litigation. If what you want to argue is not in the record, you’re out of luck. You cannot bring in new stuff.
Things You Can Do About Preservation of Error
Keep up with due dates
Keeping up with the statute of limitations is not a preservation topic pers se, but if you miss a due date on appeal, go home. You’re done. It doesn’t matter what you preserved. So, make sure you meet all appeals deadlines, including those related to filing extensions of time.
Bring a court reporter (transcript)
A transcript from a court reporter is one of the most valuable preservation tools you can have. Some courts provide reporters. Some don’t, but they’re worth the money. Without a court reporter, the judge and your opponent must sign off on what was said during a hearing or trial. If the judge said or did something very wrong at trial, and he gets sudden and severe amnesia when you need to appeal, you lose. So keep everybody honest by assuring that a court reporter is present.
Object on the record
Objecting is another way to “save” issues for use on appeal. During written discovery, at trial, in hearings, and in depositions, when something is irrelevant, overbroad, vague, and so on, make yourself heard. Object! If you don’t, you waive the right to bring the issue up on appeal.
Appeal if necessary
When you go through the process of an interlocutory appeal, you let everyone in the case know that you have no intention of waiving a particular issue. The higher court might decline to hear your appeal, but that doesn’t mean your issue has no merit. The court is simply saying that the issue doesn’t meet the standard for an interlocutory appeal. It may be perfect for final appeal, especially since you preserved it.
Move when you need to move
If your opponent files an affidavit in support of a motion for costs, and you know the stated amount is very wrong, move to strike the affidavit. If you don’t, you can’t later appeal the amount. When the opportunity presents itself in the form of a directed verdict, move for it. If you don’t, you might waive the right to argue for it later. Move to reconsider if the judge missed something important in a ruling. Again, move when you need to move.
The Last Word on Preservation of Error
Unfortunately, many pro se litigants fall into the “failure to preserve errors” trap. They get to the end of a case and are unable to salvage it because they haven’t preserved an issue.
It seems unfair. It’s bad enough that there are so many barriers to favorable outcomes for us, but the notion of preservation seems particularly harsh. If a judge is wrong, he’s wrong, whether you said it two years ago when he was wrong or you said it on appeal. Wrong is wrong! Right?
Right, and you can still lose on appeal despite the judge being wrong.
So play the litigation game with skill from beginning to end. Prepare for the worst by preserving errors.
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