Whether it’s during a deposition or during trial, the job of preserving errors for judicial review is a vital part of the litigator’s professional obligation to his or her client. Many trial outcomes turn on evidentiary rulings, particularly on the exclusion of evidence that one party believes is absolutely essential to its case. When this happens, trial counsel must be sure to create a record that allows the appellate court to grant meaningful relief if, in fact, the trial court committed reversible error.
During the recent 2021 Annual Florida Bar Convention, the State Bar of Florida hosted several panel discussions designed to bring heightened attention to this seemingly pedestrian but critical aspect of trial advocacy.
Several speakers mentioned the key role that depositions can play in preserving errors for appellate review. If the trial court excludes testimony from a witness who previously testified in a discovery deposition, then trial counsel should request that the deposition be included in the record on appeal. Used this way, deposition transcripts can be a compelling means for litigators to show the appellate court the impact of wrongly excluded evidence.
Appellate Courts’ Hands Are Tied Without a Record
Florida Supreme Court Justice Jorge Labarga delivered remarks setting the stage for the discussions. Labarga said that Florida’s trial lawyers owe it to their clients to have a sound understanding of the rules for preserving trial court errors for later appellate review. Unless errors are properly preserved, the appellate courts will be limited in their ability to correct mistakes — no matter how much they might desire to do so, Justice Labarga cautioned.
Steven L. Brannock, of Brannock Humphries & Berman in Tampa, Fla., summarized the core components of an effective claim of error and preservation of that claim for later appellate review:
1. Raise the error with the trial court. “If you don’t raise it in the trial court, it’s gone,” Brannock said. Errors not raised in the trial court can be raised with appellate courts, but the standard of review is so demanding that, for all intents and purposes, the alleged error is unlikely to be remedied on appeal, he added.
2. Create “building blocks” for appellate relief. Litigators should make sure that the record created in the trial court contains both the necessary facts and legal arguments necessary for the appellate court to rule in the client’s favor.
3. Object immediately. Effective objections occur immediately after the alleged error, at a time when the trial court can give the objector the relief requested.
4. Don’t hold back. “Make sure you say exactly why you object because on appeal, you’re going to be held to the argument you made in the trial court,” Brannock said. “If you say ‘Objection, hearsay,’ and in the appellate court, you get the bright idea that maybe the testimony was also irrelevant — tough luck. You have a hearsay objection; you don’t have a relevancy objection.”
Litigators should, for similar reasons, be sure to articulate all legal grounds supporting their claim of error.
5. Ask for what you want. Appellate courts will not grant any relief that was not specifically requested from the trial court. For example, does the litigator want a curative jury instruction or a mistrial? Be specific with the trial court.
6. Get the trial court’s ruling clearly on the record. Sometimes, Brannock said, a lengthy bench conference will conclude without the trial court’s ruling clearly appearing on the record. The lawyers participating in the bench conference may understand the court’s ruling, but there’s little in the record that would help an appellate court understand the ruling.
Lawyers should, at the end of the bench conference, summarize on the record the substance of the trial court’s ruling and then ask for the court’s assent to their summary. “Your appellate lawyer will love you for that. The appellate court will love you for that,” Brannock said.
Lawyers Should Have Deposition Transcripts Ready
When a trial court excludes testimony or evidence, there is no way that an appellate court can review the trial court’s ruling unless it has a means to review the excluded testimony or evidence. For this reason, the lawyer trying the case must make a proffer. In the case of witness testimony, the proffer can take the form of either (1) the witness’s testimony in open court outside the hearing of the jury, (2) the witness’s prior deposition testimony, or (3) the lawyer’s summary of what the witness would have testified if allowed to do so.
According to Hala A. Sandridge, a partner at Buchanan Ingersoll-Rooney in Tampa, Fla., the lawyer’s summary is the least effective type of proffer. “You need to ask first for the witness to testify out of the presence of the jury,” Sandridge said. “If the judge won’t do that, try and admit a deposition. If you don’t have the deposition or an affidavit, then go ahead and do the summary. But to me, it’s a last resort.”
Brannock said he agreed. “I always like it when the proffer is coming right out of the witness’s mouth,” Brannock said. “I love to have the witness talking at a deposition or even the witness being interrogated outside of the hearing of the jury, because then there is no argument about what this witness is going to say.”
On-the-record witness testimony — whether at a deposition or in court — puts the lawyer in the best possible position to make a persuasive argument to an appellate court, he said.
Dennis R. O’Connor, a partner at O’Connor & O’Connor in Orlando, Fla., said that filing prior deposition testimony can be effective if the trial court is pressuring the litigants to move on following an adverse ruling.
“If this witness had provided deposition testimony that was sufficiently comprehensive and complete to create a complete proper proffer of that evidence,” O’Connor said. “Make sure that deposition is filed, and perhaps even reference to the court the pages where that dialogue is found.”
Additional Advice for Preserving Errors
In addition to the use of deposition testimony in proffers, attorneys offered several other pointers for effectively preserving trial court errors for appellate review.
In some cases, it might be a good idea to have a pretrial conference with the court to discuss preservation of error issues. Experienced litigators usually are familiar with the judges before whom they’re trying their cases. They know how these judges will likely rule and how receptive those judges will be to proffers and other attempts to preserve errors. When a case is tried before a new judge, however, it can be a good idea for litigators to request a pretrial conference with the judge to go over trial administration matters. How will the court handle error preservation attempts? Is a single objection good for the rest of the trial? Or should counsel object each time the issue is raised?
Demonstrative evidence supporting witness testimony should be made a part of the trial record. Expert witnesses frequently testify with visual aids, such as PowerPoint slides containing charts and diagrams. For any number of reasons, these aids are not necessarily admissible evidence, but they are helpful to understanding the witness’s testimony. If demonstrative evidence is excluded at trial, litigators should make sure it is included in the record for purposes of appellate review.
In some cases, a trial court’s decision to exclude evidence might be legally correct at the time the court made the ruling, but erroneous in light of later developed evidence or party arguments. If evidence subsequently developed at the trial calls into question the court’s earlier ruling, the trial attorney must make a new objection to the court’s earlier ruling. Unless the trial court has an opportunity to reconsider its earlier ruling, the trial attorney won’t be able to use the subsequently developed evidence as a basis for challenging the trial court’s initial decision to exclude the evidence.
Finally, the trial attorney should be sure that impressions and so-called “nonverbal conduct” are noted in the record. This advice pertains to both depositions and trial records. Examples might be when the trial attorney observes a juror who is falling asleep, glued to their cell phone, or engaging in some sort of behavior that prompts a motion to strike the juror. If this occurs and the attorney is worried that the motion to strike will be challenged on appeal, then the attorney should request a sidebar conference with the trial judge and request the judge to confirm the attorney’s impressions regarding the juror.
Every state, as well as the federal justice system, gives criminal and civil litigants the right to appeal adverse outcomes in the trial court. (Except prosecutors, who may not appeal “not guilty” verdicts and bench rulings.) Unless careful attention is paid to the rules for preserving evidentiary rulings for review, appellate courts will not be able to correct those errors — except in the most egregious (and rare) instances. When this happens, clients are deprived of the full measure of justice afforded by the law.