Most people have watched a show where they see a trial attorney object to an argument that is ultimately sustained. While it’s a great tool to use to create drama for TV, it can work to the detriment of counsel. When this happens in real life, an appeal is likely to follow because the argument, or perhaps evidence presented, has now been heard by the jury, which has now harmed the client. However, there’s now a problem involving preservation of error.
When you fast forward this scenario to an appellate court and the counsel challenges the district court judge’s decision to sustain the objection, there isn’t likely to be a ruling in the attorney’s favor because they did no preserve the error. Preservation of error is when the district court has a chance to correct an error when it occurs. This should happen way before the appellate court receives the case. In fact, it’s one of the reasons why an appellate court would not even consider correcting the error.
When counsel fails to object to error in a manner that’s considered timely, while spelling out the reasons for the objection, they have not given the court a sufficient opportunity to resolve the error the moment it happened. An appellate court is likely to decline correcting the error because counsel did not properly object to either an improper argument or evidence presented. While this might sound wrong to some degree, it’s important to keep in mind that the role of appellate courts to correct errors that were made by the district court, not counsel. When the district court isn’t actually given an opportunity to rule on an error in a timely manner, the court has not made a mistake that needs to be corrected.
This type of situation has the potential to get complicated in real life because there are protocols and rules that must be followed. Whether or not the rules are followed, everything that happens in the district court will impact what happens during the appeal. For instance, the fact that the jury heard information that likely harmed the client is a big deal that must be addressed because it has certainly prejudiced the jury. The proper way to go about addressing the matter is by continuing to object until an adverse ruling is received. In the event that the objection is sustained, the next step is the request that the court strike the testimony or evidence.
In the event that a motion to strike testimony or evidence is denied, that means there has been a ruling against the counsel, which also means the error is preserved as required for the appellate purposes. In the event that the motion to strike the testimony or evidence is granted, there is no adverse ruling. If this happens, it’s then prudent for counsel to ask that the jury receive instructions to disregard the testimony or evidence. One of the reasons why this is important is because it allows counsel to preserve the issue for appeal.
While this example may sound complex, what happens in real life gets even more complicated because there are so many different factors involved. The bottom line is that what happens during the trial will have a direct and significant impact on what happens during an appeal. Effective counsel will be fully aware of this fact and govern themselves accordingly for the benefit of their client. Given the complexities of the process, this is an issue that escapes some appellate lawyers.