Overview
In complex civil trials, attorneys often focus solely on prevailing at the trial court. But the best trial lawyers know that the trial court is but one battleground. The appellate courts often determine the ultimate outcome in complex civil matters that proceed to trial. To win, properly preserving issues for appeal is a strategic imperative.
A victory on an issue at the trial court becomes pyrrhic in the best light if that outcome will cause an appellate reversal or will otherwise prolong and increase the cost of victory.
Appellate courts are not trial courts. They do not reweigh evidence or retry cases. Instead, they review the record for legal errors.
If an issue was not properly preserved in the trial court, it is often waived, and the appellate court will not consider it. And even if the issue is technically preserved, a poorly developed record can lead to a deferential standard of review that makes reversal less likely.
Preserving issues for appeal is about more than just making objections. It is about creating a clear, complete, and strategic record that sets the stage for appellate success.
As Gilbert King detailed in the Pulitzer Prize winning Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America, legendary trial lawyer and future Supreme Court Justice Thurgood Marshall viewed the most hostile trial courts, and even those that were friendly, as staging grounds for appellate battles. His legend was born by positioning cases to succeed at the appellate level even where victory at the trial court seemed unlikely.
How to meet similar success?
The following illustrative set of "dos and don'ts" outlines strategic inflection points for civil trial lawyers seeking to preserve issues for appeal.
1. Pleadings
Don't: Treat the Complaint as a Mere Formality
As the California Supreme Court noted in Hendy v. Losse, 54 Cal. 3d 723, 742 (1991), "[w]here a verified complaint contains allegations destructive of a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation."
Still further, as the Ninth Circuit Court of Appeals held in Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) - reaching a result similar to what the Third Circuit Court of Appeals found in Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 642 (3d Cir. 1993)- a plaintiff who fails to move to amend pleadings during discovery to reflect theories of liability revealed by information produced in litigation should be barred from pursuing that theory at trial. This rule prevents prejudice to the defendant, "who faces different burdens and defenses under this second theory of liability."
Setting the appellate stage begins early in litigation. A party can inadvertently plead their way out of court by asserting theories that doom liability, which theories often bound parties with verified complaints and cannot be corrected simply by omitting the fatal allegations.
More often, cases evolve in discovery, changing and altering theories of liability from those initially plead.
Where that occurs, it is important to timely seek leave to amend the operative complaint or answer to add those theories of liability. Absent that, any victory under those new theories is likely to face a tough appellate road. As Coleman and Josey detail, where the record does not include an alleged theory of liability or affirmative defense, it is often precluded to avoid prejudice.
Do: Raise Affirmative Defenses Promptly, and Don't Assume You Can Raise a New Defense At Trial
Many jurisdictions codify the requirement that affirmative defenses be raised in pretrial pleadings or waived.
Texas, for example, in Rule of Civil Procedure 94 requires that a party plead affirmative defenses expressly or waive them. The Texas Supreme Court confirmed in MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136-37 (Tex. 2014) that a party waives any defenses under Rule 94 that it does not expressly assert in its pretrial pleadings.
Florida, in its Rule of Civil Procedure 1.140(b) provides that "[e]very defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading . . . [and] [a]ny ground not stated shall be deemed to be waived . . . ." Indeed, appellate courts in Florida have reversed defense findings at the trial court where the trial court relies on an unpled affirmative defense. See, e.g., Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So. 2d 992, 993 (Fla. 4th DCA 2003) (reversing the trial court's involuntary dismissal that was based on an unpled affirmative defense).
Even in jurisdictions where there is not a statutory provision, the general rule is that affirmative defenses not pled are waived. See, e.g., Kaplan v. Jackson, 1994 WL 45429, at *2 (Del. Super.) ("Generally, if a defendant does not plead an affirmative defense, he or she waives that defense"); Sharon v. Newton, 437 Mass. 99, 102, 769 N.E.2d 738 (2002) ("[O]mission of an affirmative defense from an answer generally constitutes a waiver of that defense"); Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997) ("Statute of limitations defenses are affirmative defenses and are waived unless properly raised.")
How can a party defend an action successfully at trial and ultimately lose? By failing to plead the most salient affirmative defense in an answer or by failing to timely amend your answer to state that affirmative defense.
Prior to trial, defendants should seek to amend their answers at the first opportunity to set forth affirmative defenses on which they intend to rely. It is alright and, perhaps, de rigeur to discover additional affirmative defenses when preparing for trial. It is imperative to assert those defenses in pretrial pleadings to avoid an appellate disaster.
But Note: You Should Raise the Issue at the Trial Court
In certain jurisdictions, like in Texas under Rule of Civil Procedure 64, "an unpleaded issue may be considered tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case, and the other party failed to make an appropriate complaint." RR Maloan Invs., Inc. v. New HGE, Inc., 428 S.W.3d 355, 363 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
"A party who allows an issue to be tried by consent and who fails to raise the lack of a pleading before submission of the case cannot later raise the pleading deficiency for the first time on appeal." Id. See also, Coldren v. May, 72 Ohio App. 484, 489 (1942) ("where a party goes to trial without interposing any objection on the ground of the absence of proper pleadings, he is precluded from raising the question on appeal or review."); Park Forest v. Angel, 37 Ill. App. 3d 746, 752 (1976) ("When a party proceeds to trial as though his adversary's pleading which joined issue were on file, he thereby waives his adversary's failure to plead and such point may not be raised on appeal.")
Thus, you should not simply lay in the weeds and allow a matter to be tried where an affirmative defense or cause of action was not pled. The best course of action where an opposing party has not pled a theory of relief or an affirmative defense is to raise objection to proceeding under that theory at the trial court and to preserve that record.
2. Pretrial Motions Practice
Do: Attack the Pleadings if They Are Defective
Expanding on the need to raise pleading issues with the trial court, "the failure to properly entitle an action is waived and cannot be raised for the first time on appeal where no objection is made in the trial court and the case is tried on the theory that the pleadings are of such form and substance as to properly frame the issues actually tried." Lehmuth v. Long Beach Unified School Dist., 53 Cal. 2d 544, 557 (1960).
Indeed, it has long been the majority rule that a party waives an objection to a defect in the pleadings by not timely raising it. As the New Mexico Supreme Court noted more than a century ago, "the general rule is that an objection to a pleading may be waived by failure to urge the objection at the proper time or by any act which in legal contemplation implies an intention to overlook the defect." Chi., Rock Island & El Paso Ry. Co. v. Wertheim, 15 N.M. 505, 508 (1910). See also, Drennan v. Wilkes, 179 N.C. 512, 514 (1920) ("Where an issue involved by the pleadings was not tendered, and the issues submitted were not objected to on the trial, a party in such default cannot complain for the first time in this court."); Phillips v. Cooper, 50 Miss. 722, 725 (1874) ("Having gone to trial without objection to the want of or to defect in the pleadings, or in some way calling the attention of the court to the matter, the party cannot be heard to complain for the first time in the appellate court.")
To preserve challenges to the pleadings, a party must raise them at the trial court. See, e.g., Matthews v. Truax, Carsley & Co., 265 N.Y. 6, 8-9 (1934) ("All defects in the complaint, and all defects as to parties to the action, were waived by failure to raise those questions at the proper time."); Porter Drywall, Inc. v. Nations Constr., LLC, 2008-Ohio-1512, P15 (2008) ("[T]o the extent defendants now raise an alleged omission in plaintiff's pleading, they waived the issue by not bringing it to the attention of the trial court.")
To preserve the record for appeal, any challenges to the sufficiency of the pleadings in a matter, including the proper naming of parties and the proper assertion of claims that entitle a party to relief or a defense, need to be raised in the trial court or be waived. There is often a competing desire to control litigation costs, but it is critical to challenge defective pleadings to avoid waiver at the appellate court.
Don't: Rest on In Limine Rulings
The Rhode Island Supreme Court put it best in 2019:
A trial justice's rulings on motions in limine are preliminary in nature. The inherent purpose of a motion in limine is to prevent the proponent of potentially prejudicial matter from displaying it to the jury in any manner until the trial court has ruled upon its admissibility in the context of the trial itself. As such, an in limine ruling is not final and a trial justice is vested with broad discretion to reconsider the ruling as the trial unfolds. Accordingly, it is incumbent upon counsel to raise timely and appropriate evidentiary objections throughout the trial in order to preserve the issues for appeal.
State v. Colon, 198 A.3d 1249, 1255 (2019) (cleaned up).
A nightmare scenario unfolds where a party succeeds on a motion in limine, only for the evidence to come in anyway at trial. There, the party must object to the introduction of that evidence, regardless of whether a motion in limine was granted or not, to preserve the issue for appeal.
Do not rest on in limine rulings. Preserve the record by objecting to the introduction of evidence even if an in limine order precluded it or if an in limine order did not. It is worth noting in the latter case, that in certain jurisdictions, "[i]n cases involving motions in limine properly made and ruled upon by the trial court, however, we have consistently held that the objection raised in the motion is preserved for purposes of appeal without the need for a specific objection at trial." State v. Lujan, 136 Ariz. 326, 328 (1983).
With that said, it is better to err on the side of caution and preserve the record for appeal by objecting to evidence that falls within the scope of an in limine motion on the record.
Do: Choose Summary Judgment Arguments Carefully, and Re-Raise Purely Factual Issues Post-Trial
Like motions in limine, summary judgment motions are a great opportunity to narrow issues before trial. When filing summary judgment motions, lawyers should be strategic in selecting arguments to advance and thoroughly brief and support their arguments with factual and legal citations. Where the trial court denies a motion for summary judgment on sufficiency-of-the-evidence grounds, a trial lawyer must re-raise the same argument in a post-trial motion in order to preserve it for purposes of appeal. Ortiz v. Jordan, 562 U.S. 180 (2011).
However, where a trial court denies a motion for summary judgment that raised a legal issue on undisputed facts, the moving party is not required to re-raise the argument lost at summary judgment to preserve it for appeal. Dupree v. Younger, 598 U.S. 729 (2023).
3. Trial Practice
There are ample opportunities to identify and preserve trial error during trial.
Do: Object Clearly, Specifically, and Timely
To "preserve an issue for appellate review, a litigant must place a timely, specific objection on the record. Issues that are not preserved by specific objection in the lower court are waived." Jones v. Ott, 648 Pa. 76, 191 A.3d 782, 787 (Pa. Super. 2018).
"A party who fails to preserve an issue for appeal by objecting in a timely manner to testimony or issues before the trial court, or to instructions given, or by neglecting to offer a proper instruction has waived review of that issue in the appellate courts." Gowens v. Barstow, 2015 OK 85, P42 (2015).
"A defendant cannot preserve issues for appeal by generally objecting or nominally invoking the state and federal constitutions … a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such a claim on appeal." State v. Alvarez, 872 P.2d 450, 460 (Utah 1994).
Pennsylvania, Oklahoma, and Utah are not outliers. The rule of the road for appellate preservation is to object immediately and with specificity to problematic evidence, instructions, or guidance from the court.
Don't: Let Strategic Silence Waive Any Issues
A difficult strategic decision that trial lawyers must often make is how frequently to object to a particular line of questioning or to a specific type of evidence. Some trial lawyers err on the side of minimizing disruptions by raising standing objections where appropriate. But be careful! While standing objections are useful for minimizing disruptions, strategic silence risks forfeiting or waiving a meritorious appellate issue.
While being wary of offending the jury or judge, it is incumbent that proper objections are taken to preserve the record for appeal.
Do: Timely Preserve Instructional Issues
Jury instructions are another critical area for preservation. Counsel should submit preferred instructions in writing, object to proposed instructions with specific legal grounds, and reassert objections during the charge conference. All objections must be made before the jury is instructed and begins deliberations to be preserved for appeal. See, e.g., Johnson v. Conway, 688 Fed. Appx. 700, 711 (11th Cir. 2017) (cleaned up) ("Rule 51, Fed. R. Civ. P., governs objections to jury instructions and preserving a claim of error for appeal. For an objection to be timely under Rule 51, it must be made before the instructions and arguments are delivered. We interpret Rule 51 strictly, and require a party to object to a jury instruction or jury verdict form prior to jury deliberations in order to preserve the issue on appeal. That requirement ensures that the trial judge has an opportunity to correct any error before a jury has begun its deliberations. A party who fails to raise an objection to a jury instruction prior to jury deliberations waives its right to raise the issue on appeal unless the appellant can satisfy plain-error review.)
4. Post-Trial Practice
Post-trial motions, such as renewed motions for judgment as a matter of law and motions for a new trial, are important tools for preserving legal and factual arguments. Even if objections were made during trial, these motions can reinforce preservation and raise new issues based on trial developments.
Do: Take Care to File a Timely and Accurate Notice of Appeal
The notice of appeal is a critical step that must not be overlooked. Under federal rules, it must be filed within 30 days and specify the judgment or order being appealed. Missing this deadline can be fatal to the appeal. The notice must also clearly identify the appealing party.
Do: Address Sufficiency of the Evidence Issues in Post-Trial Briefing
As detailed above, where a party lost summary judgment on sufficiency-of-the-evidence grounds, a trial lawyer must re-raise the same argument in a post-trial motion to preserve it for purposes of appeal.
But even absent such a summary judgment finding, "a party must raise a sufficiency-of-the-evidence claim in a post-trial motion to preserve it for review on appeal." Dupree v. Younger, 598 U.S. 729, 734, (2023).
A loss is not a loss unless the loss is not challenged. And where a party loses at trial but the evidence does not appear to support the judge's or the jury's findings, the losing party must file a post-trial motion challenging the sufficiency of the evidentiary support for the verdict or waive its ability to do so at the appellate court. While such post-trial motions are not frequently granted, they are an essential tool to preserve appellate review in Federal courts and in certain state jurisdictions.
Conclusion
"To err or not to err" is not just a philosophical question—it's a practical one. In civil litigation, the failure to preserve issues for appeal dooms a litigant to the trial court results, even where those results are erroneous. Even in victory, preservation of issues for appeal is critical to ensure that victory remains. While trying cases, it is imperative to keep an eye on and be mindful of the appellate review that may be forthcoming.
