Ten tips for preserving your record on appeal

Marcia J. Silvers, an attorney from Florida, has published a useful article entitled “How Not to Regret Your Appeal: Ten Tips for Soothing Your Appellate Lawyer” in the Winter 2015 issue of Litigation.

I’m not a huge fan of the title, which seems to imply that we appellate lawyers are out to criticize trial lawyers (we’re not), but the ten tips serve as good reminders of what good trial lawyers can do to help get their cases into appeal-ready shape.

All of the tips are good, but I’ll add a few comments derived from my experience in New Mexico practice:

Tip #1: “Objection, Your Honor!” Ms. Silvers suggests that one way to avoid alienating the jury, and your trial judge, is to “ask the court for a continuing objection.” This can indeed work, but in the past I’ve seen trial lawyers simply state that they’re “taking” a continuing objection. That’s not sufficient. Under New Mexico law, the trial judge must specifically grant you a continuing objection. If she doesn’t, then keep those objections rolling.

Tip #4: “File motions in limine.” I would add that if the trial court denies your motion in limine, it doesn’t necessarily mean you’ve preserved the issue for appeal. Remember to raise the issue again when the objectionable evidence is offered at trial, and explain both why the evidence is improper and how it is causing unfair prejudice to your client.

Tip #9: “Don’t shy away from objecting to improper closing argument.” Over the past six or seven years, I’ve seen a number of cases where blatantly improper arguments were made in closing argument, but where no one objected. While it is theoretically possible for a New Mexico appellate court to address an unpreserved objection under the fundamental error doctrine, this is highly unlikely! Request a sidebar conference, state your objection, and then ask for a curative instruction or mistrial.

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