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Error Preservation: A Synopsis for Your Trial Plan

Mon, 07/23/2018 - 09:54 -- admin25

by John S. Adams

Error preservation is an important part of trial strategy that should mesh with the primary goal of winning at trial. To help integrate those parts of the trial plan, this article summarizes the basic tools available in state court to preserve error.

Errors worth preserving are “reversible,” i.e. harmful. Under the rules of appellate procedure, a reversible error “probably caused” an improper judgment or prevented a party from properly presenting its case at trial. Effective error preservation, therefore, does not mean making every objection (thereby alienating judge and jury), rather it requires objecting only when an error is likely to affect the judgment or appeal.  

To preserve an error, the rules generally require: (1) a motion, objection, or request; and (2) a ruling. Error may also be preserved if the court refuses to rule, and if the party objects to that refusal. All steps to preserve error must be made part of the record. If an objection or request is not on the reporter’s record, a formal bill of exception should be filed, stating the request or objection. Generally, error is only preserved for the party that raises the issue at trial, unless a clear statement on the record shows that an objection for one is an objection for all.

Voir dire errors can be difficult to preserve. When challenging a venire member for cause, error is only harmful if, after the challenge is denied, a party exercises all of her peremptory strikes and the objectionable venire member becomes a juror. Also, court reporters may not transcribe voir dire without a request to do so.

Evidentiary errors are among the most common. For the party objecting to evidence, errors may be spotted early, for example in a motion in limine. But to preserve error, an objection must be made when the evidence is offered. And then a mere “objection” will not suffice, because the basis of the objection must be stated on the record. For the party offering evidence, if evidence is improperly excluded, error is not preserved until the evidence is tendered to the court with an explanation of its significance and admissibility. This tender must be made before the jury is charged.

In the special case of a relevance objection to an issue outside the pleadings—which must be made to avoid trial by consent—the party seeking to admit evidence should request leave to amend, show no surprise, and file the proposed amendment.

Evidence can pose a particular challenge when presented multiple times at trial. So-called “running objections” may preserve error if the source and subject of the evidence is clearly identified, which precludes the necessity of objecting to each reference to that evidence. Running objections can be risky if similar evidence is introduced that may not fall within the stated grounds for objection. To ensure effectiveness, a running objection should be renewed if the objectionable evidence is later introduced through a new witness.

Jury charge errors must be objected to on the record, not only at an informal charge conference. A request for a corrected or missing question, definition, or instruction must be made before the jury is charged, and the requested question, definition, or instruction must, itself, be substantially correct. A ruling should be obtained on each individual request on which your client has the burden of proof.

A verdict should be closely reviewed for conflicting or missing answers before the jury is discharged, otherwise the error is waived. If answers are irreconcilable, a party may request that the court order further deliberations.

A judgment on the verdict will incorporate all of the jury’s findings (including adverse ones), unless the moving party specifically requests the court to disregard adverse findings or expressly reserves its right to complain on appeal. Requesting a judgment notwithstanding the verdict (i.e. JNOV) is one way to preserve an argument that no evidence supports the verdict, or a legal rule (e.g. a statute of limitations) bars recovery, although these may also be preserved through a motion for directed verdict or a motion for new trial.

A motion for new trial is generally not a prerequisite for appeal, but it is a way to preserve error about: (1) improper jury argument (which should ideally be addressed first by a request to disregard); (2) juror misconduct; (3) insufficient evidence to support the verdict; and (4) a legal rule bars the judgment.

John S. Adams is an associate at Lynn Pinker Cox & Hurst, LLP. He may be reached at

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