October 1996

Instead of the usual issue of Case Law Update this month, here is an outline of the lecture I gave at the Dade County Trail Lawyer's Seminar on October 24. I hope you find it useful. The regular Case Law Update format will return next month.

Preserving Trial Error for Appeal
Dade County Trial Lawyer's Association
Masters of the Courtroom Seminar
October 24, 1996

I. Introduction -- importance of preserving error for appeal.

A. Famous last words from a trial lawyer: "I don't care about preserving the record. I'm going to win this case".

B. It's true that there are some errors you may decide to waive for tactical reasons. But what if you do lose? What if your opponent wins and you want to cross appeal trial errors? If you don't preserve the issues, you're left with FUNDAMENTAL ERROR. That's not much.

C. Fundamental error is error that is reversible even though it was not properly preserved. It is error that is so egregious and pervasive and that so affects the fairness of the proceedings that no objection is required. Error that "goes to the foundation of the case or goes to the merits of the cause of action". Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970).

D. From an appellate perspective, it's best to "jump through the hoops" and preserve for review any error which you might want to raise on appeal. See Eaton, Jumping Through the Hoops to Meaningful Appellate Review: Protecting the Record at Trial, 54 Fla. B. J. 12 (May, 1988). You may decide to waive an appellate issue for purposes of trial strategy, but at least you should do it knowingly and intelligently, not by accident.

E. The principal behind the requirement of preserving error is to bring it to the trial judge's attention, explain the issue to the judge, and give the judge an opportunity to correct it at a time when the trial judge has the ability to do so.

F. Thus, the essentials of an objection, motion or request are:

II. Preserving issues before trial.

A. The failure to seek review by certiorari of a departure from the essential requirements of law in an interlocutory order does not waive that issue for appeal. Nor does a denial of certiorari without opinion preclude raising the issue in an appeal from a final judgment See Accent Realty v. Crudele, 496 So.2d 158 (3d DCA 1986), rev. denied 506 So.2d 1040 (Fla. 1987).

B. A partial final judgment (e.g., a summary judgment) which totally disposes of an entire case as to any particular party must be appealed within 30 days of rendition. Fla. R. App. P. 9.110(k).

III. Preserving errors in jury selection.

A. This is an example of errors that you might wish to waive for tactical reasons, such as getting an even worse jury if you jump through all the hoops to preserve the error. But this is also a place where you can carefully preserve error, and make the job easy for your appellate lawyer.

B. Erroneous denial of challenge for cause

C. Discrimination by opposing party in use of peremptory challenges

IV. Opening statement

-- Many of the points discussed here will also apply in closing argument.

A. Inadequate time allowed for opening or closing, or for voir dire:

B. Improper argument by opposing counsel.

V. Preserving evidentiary errors

A. Errors in excluding evidence:

B. Orders erroneously admitting evidence.

C. A motion for new trial is not necessary to review questions of law that have otherwise been preserved, such as the admission or exclusion of evidence, or giving an erroneous instruction. Smith v. McCullough Dredging Co., 152 So.2d 194 (Fla.3d DCA 1963), cert denied 165 So.2d 178 (Fla. 1964).

VI. Sufficiency of the evidence

A. Move for a directed verdict

B. Move for a J.N.O.V., or for judgment in accordance with the motion for directed verdict.

C. Move for a new trial, arguing that the verdict is contrary to the evidence and contrary to the manifest weight of the evidence.

D. If you are hit with a motion for directed verdict on an issue which you somehow overlooked and failed to prove, and you can prove what you need to prove, ask for leave to reopen your case and proffer the evidence you want to introduce. The trial judge has discretion to grant such a motion; failure to make such a motion will waive any relief you might otherwise get. Sheriff of Orange County v. Boultbee, 595 So.2d 985 (Fla.5th DCA 1992), rev. dismissed, 606 So.2d 1164 (Fla. 1993). (Roy Wasson suggests that you should always, right before you rest, move all your exhibits into evidence, in case you've overlooked anything).

VII. Jury Instructions

A. Requests.

B. Objections

VIII. Problems with the verdict

A. Verdict form

B. Inconsistent verdict

C. Excessive or inadequate verdict

D. The Two Issue Rule

E. Juror misconduct

IX. Conclusion

The appellate courts will almost never reverse unless the issue has been properly and timely presented to the trial judge, with a full explanation of the error and the law, and a request to correct the problem, in time for the trial judge to correct it. You owe it to the court and to your client not to hold back, unless you truly make a strategic decision to waive the issue.

The assistance of Christopher Kurzner, Esq., in the preparation of an earlier version of this outline is gratefully acknowledged.