[Editor's Note: Mr. Tager is a partner in the Washington, D.C., office of Mayer, Brown & Platt. He specializes in appellate litigation. He also frequently assists trial counsel in devising litigation strategies and in ensuring the preservation of arguments for appeal. Copyright 1997 Evan Tager. Replies to this commentary are welcome.]

The federal and state reporters are filled with cases holding that what appears to be a meritorious argument was not adequately preserved in the trial court. Some cases even go so far as to reverse a judgment notwithstanding the verdict or a new trial because of inadequate preservation. ⁽¹⁾ These published decisions actually understate the instances of waiver because many times the failure to preserve an argument obviates the need for a published disposition or is so manifest that appellate counsel cannot, in good conscience, even raise the issue.

The purpose of this article is not to criticize the trial bar: most instances of waiver result either from conscious tactical decisions or from oversights that are entirely understandable given the hectic atmosphere of an ongoing trial. Rather, my goal here is to point out some constructive ways that in-house counsel and the trial attorneys they have selected can minimize the chance of being held to have failed to preserve a key ground for reversal.

A. Assign A Trial Team Member Responsibility For Preserving Grounds For Appeal

In big cases it may behoove in-house counsel to consider adding an appellate specialist to the team from the outset. The appellate specialist can identify key legal arguments, draft dispositive motions and motions in limine, and prepare proposed instructions that adequately preserve claims of instructional error. (I shall discuss preservation of instructional error in greater detail below.)

If the case does not have the budget for an appellate specialist, I suggest that someone on the trial team be given the specific responsibility of ensuring that points are properly preserved. I recently worked on an appeal in a case in which two outstanding lawyers from different firms served as trial counsel. They divided responsibilities witness-by-witness. This is a fairly common way of doing things, but the result sometimes is that things slip through the cracks. In my view, one of these two attorneys or, alternatively, an associate working with them should have been tasked with ensuring that arguments were properly preserved. That would mean making sure that key rulings were on the record, that proper instructions were submitted, and that objections to testimony were made at the proper time and on the proper grounds. (I will have more to say on each of these points later.)

B. Ensure That Rulings Are On The Record

For some reason, many judges make key rulings in chambers without a court reporter present. I have seen this in case after case. When judges do this, it puts the parties in a difficult predicament. Either they must insist (politely, of course) that the court put its ruling on the record — or, better yet, that a reporter be present for all conferences — or they must go forward without having a record of what has transpired. The former course risks incurring the wrath of the trial judge; the latter risks having an appellate court question whether there actually is an adverse ruling from which to appeal. Although ultimately trial counsel must weigh the risks, my view is that the balance almost always should be struck in favor of getting the rulings on the record. While it always is better to win at trial and while not annoying the judge is therefore important, the appeal must remain an important element of the defense strategy. Counsel should not allow judges to insulate their rulings from appellate scrutiny by refusing to permit them to be transcribed. If, however, counsel receive a clear signal that the judge is hostile to having a reporter present when a ruling is being made, they should, at a minimum, ask to recap the ruling on the record when a reporter is present. If given that opportunity, counsel should try to recite the court's grounds (if any were given). This will help appellate counsel enormously by providing the target that they have to hit. If a court is truly obstinate about not putting rulings on the record, counsel should try to get that "ruling" into the record. An appellate court hardly can fault a litigant on preservation grounds if the record reflects that the trial court had refused to make its rulings on the record.

C. Motions In Limine

The motion in limine is used to head off an opponent's attempt to introduce evidence that is hearsay, irrelevant, more prejudicial than probative, or excludible for any number of other reasons. It is a valuable procedure because it enables the objection to be considered before the jury is exposed to the evidence. Nonetheless, courts tend to be reluctant to grant such motions without having heard any testimony. Often, courts will expressly reserve their rulings on the motions until the evidence is sought to be admitted. In these circumstances, it is crystal clear that the mere filing of the motion does not preserve arguments relating to the inadmissibility of the evidence. Counsel must object at the time the opposing counsel seeks to introduce the evidence.⁽²⁾ If counsel know which witness their opponent will use to introduce the evidence, they should renew the motion before the witness takes the stand. If counsel do not have such knowledge, they will have to be on their toes so that they can object immediately when a witness starts referring to the contested evidence. (The latter scenario can be avoided in some cases by requesting, at the time the court defers its ruling, that it order opposing counsel to identify the witness through whom they intend to introduce the evidence.)

Of course, the deferral of the motion presents an added risk that opposing counsel will feel free to advert to the evidence during opening statements. Counsel should ask the trial judge to instruct opposing counsel not to refer to such evidence until it has been ruled admissible. The court's refusal of such a request could conceivably be a ground for appeal if the court ultimately holds the evidence inadmissible.

A final point on motions in limine bears mention. Often, the motion will be predicated upon an anticipated improper use of otherwise relevant evidence. If the court refuses to exclude the evidence, counsel should be careful to ask the court to limit the use of the evidence to its permissible purpose. And, if the improper use is not anticipated at the time the motion is denied (and thus has not been briefed or argued to the court), counsel should object anew when the evidence is used for the unanticipated, improper purpose. The failure to object at that point will almost certainly be deemed a waiver of the argument.

D. Offers Of Proof

The Federal Rules of Evidence provide unambiguously that "[e]rror may not be predicated upon a ruling which *** excludes evidence unless *** the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked."⁽⁴⁾ Despite the clarity of this rule, the reporters are full of cases finding waivers of evidentiary arguments because of the failure to make an offer of proof.⁽⁵⁾

Although some courts have excused the failure to make an offer of proof when the trial court has excluded an entire class of evidence at the motion in limine stage,⁽⁶⁾ others have expressly held that, even then, an offer of proof is required.⁽⁷⁾ In my view, prudence dictates making the offer of proof.

When the challenge on appeal is that an instruction given by the trial court was erroneous, counsel needs to have objected on the record to the giving of that instruction.⁽⁸⁾ The reasons for objecting should be put on the record either in written form or orally. The filing of written objections will be particularly desirable if, as is all too often the case, the court has refused to put the charge conference on the record.

When a proposed instruction is unbalanced or misstates the law in a material way, appellate courts routinely hold claims of instructional error to have been waived (or, alternatively, rule that the trial court was within its discretion in refusing to give the instruction).⁽¹⁰⁾ This rule is not ironclad,⁽¹¹⁾ but there is no good reason for taking a chance by presenting a skewed or otherwise inaccurate instruction.

I am not saying that counsel should refrain from submitting instructions that seek the extension or modification of existing law. To the contrary, a significant part of my role at the trial level is to draft just such instructions. They provide the grist for the appellate common law-making mill. What I am saying is that when counsel do this, they should be careful to separate proposed instructions that extend the law from those that are directly supported by existing law. I would go so far as to give such instructions different numbers. Another technique we often use is to propose alternative versions of the same instruction, clearly indicating that one is directly supported by existing law and that the other is an extension of existing law that is supported by precedent in other jurisdictions and/or good policy. These techniques should avoid any possibility that the trial court could refuse to give unobjectionable instructions merely because counsel also proposed controversial ones.

A final point on instructional error bears mention. Even though it is common practice in many state courts to rely heavily on pattern instructions, that practice is doubly dangerous. First, pattern instructions often fail to provide adequate guidance to the jury. Counsel who stop with the pattern and fail to propose additional language miss opportunities to constrain the jury's discretion in a way favorable to their clients. Second, pattern instructions do not always correctly state the law. Because legislatures and courts are constantly changing the law, it is inevitably the case that any book of pattern instructions contains instructions that are outdated. Accordingly, trial counsel should review every relevant pattern instruction to ensure that it accurately states the governing law. It is inexcusable to fail to object to an incorrect instruction on the ground that it was based on the pattern instruction. It is worse still if trial counsel proposes a pattern instruction that misstates the law in a way that is harmful to the client.

F. Rule 50(b)

One of the most dangerous traps for the unwary in which I have seen trial counsel get caught is Federal Rule of Civil Procedure 50(b). That rule bars a party from seeking judgment as a matter of law after a verdict — what used to be called j.n.o.v.-- if that party did not seek judgment as a matter of law at the conclusion of the evidence. The rule contains two traps. First, counsel must move for judgment at the close of the evidence, not simply at the end of the plaintiff's case.⁽¹²⁾ This sometimes is problematic because, if a defendant has moved for judgment at the end of the plaintiff's case — as is quite standard and sensible practice — the trial court often will not want to have its time wasted again at the close of the evidence. Counsel must remind the court of the rule, and beseech it to conduct the pro forma motion hearing. It should be sufficient to ask the court to renew the motions and to have the court renew its rulings.

The second trap is far more insidious. Several courts have taken the strict view that post-trial motions for judgment are limited to the grounds urged at the close of the evidence. ⁽¹³⁾ Thus, for example, in one case in which my firm was retained after the denial of post-trial motions, the trial court held that defense counsel had waived a challenge to the sufficiency of the evidence supporting liability for punitive damages because he had not made that argument at the close of the evidence. He had argued that there was insufficient evidence to support liability for the underlying tort (fraud), but had not separately contended that the evidence of punitive liability also was insufficient. We drafted a motion for reconsideration, citing cases in which courts had declined to find waiver in the absence of prejudice to the opposing party,⁽¹⁴⁾ but the trial court adhered to its strict understanding of the rule.

Similarly, in a case we recently handled at the appellate level, opposing counsel claimed that our trial counsel had waived an argument that the evidence of causation was insufficient. Trial counsel had raised a host of insufficiency arguments relating to other aspects of the cause of action but did not expressly address the causation point. Fortunately for our client, the court of appeals reversed on a different ground without reaching the causation claim.

In this latter case, the trial judge made the Rule 50(b) trap all the more difficulty to avoid by imposing an unreasonable time limit for arguments on the motions for judgment. Our trial counsel had to race from beginning to end to get in even his principal points. The experience suggests the desirability of preparing a written motion that sets forth a laundry list of sufficiency arguments. Such a tactic would appear to be a useful (and necessary) precaution in this era of overworked judges who actively seek out ways to avoid deciding issues, particularly record-intensive ones.

G. Improper Remarks During Summation

Although inflammatory remarks during summation have become standard fare in big dollar tort litigation, very few such remarks will be so egregious as to constitute plain error. Indeed, one influential court has held that the plain error doctrine is not available at all in civil cases. ⁽¹⁵⁾

Accordingly, absent a contemporaneous objection, improper statements made in summation rarely will constitute reversible error. At the same time, there often are strong tactical considerations making it undesirable to object in the middle of a summation, principally the twin risks of further emphasizing the improper statement and of appearing unduly concerned about the force of the opponent's arguments. I have two suggestions that might alleviate the need for objecting in the middle of the summation.

First, counsel should attempt to anticipate potential inflammatory remarks and ask the trial judge in advance to caution opposing counsel against using them. If the court refuses to caution opposing counsel, defense counsel should request a standing objection that would obviate the need to interrupt the summation. Often it is possible to anticipate specific inflammatory remarks based on a defendant's prior experiences in similar cases — particularly in the products liability, mass tort, and consumer fraud areas. Statements made by opposing counsel or their witnesses during trial might also serve to tip off defense counsel to potential inflammatory remarks at summation.

Second, counsel should explore with the court the possibility of making objections at side bar after the conclusion of the summation. If the court permits such a procedure and subsequently agrees that a statement was improper, it would have the same options of giving a cautionary instruction or granting a mistrial that it would have had during the summation. Accordingly, such a procedure should be sufficient for preservation of error relating to the summation.

H. Motions For Mistrial

Suppose an opposing counsel adduces testimony in violation of an evidentiary ruling or makes an improper summation. A simple objection may not do the trick if the trial court notes the objection and gives a curative instruction. In such circumstances, counsel should move for a mistrial at the time of the improper conduct, specifically arguing to the trial court that a curative instruction is inadequate to prevent unfair prejudice. In the absence of such a motion, the courts will justifiably conclude that the party was satisfied with the curative instruction and did not want the case to be taken away from the jury.⁽¹⁶⁾

I. Conclusion

Trial counsel have an exceedingly challenging job, and I hate to make it more so by suggesting the need for heightened attention to preservation of error. However, given the breathtaking size of jury verdicts today, an appeal provides an essential second bite at the apple for many losing defendants. To lose that bite (or weaken its force) because of inadequate preservation is no less deleterious than to lose the trial because of failure to perform an adequate cross-examination of the opponent's star witness.

Copyright © 1999 Mayer, Brown & Platt. This Mayer, Brown & Platt article provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

1. E.g., Parts & Elec. Motors Inc. v. Sterling Elec., Inc., 826 F.2d 712 (7^th Cir. 1986).
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2. See e.g., Doty v. Sewall, 908 F.2d 1053, 1056 (1^st Cir. 1990).
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^3. See e.g., Rojas v. Richardson, 703 F.2d 186, 188-190 (5^th Cir. 1983); Starr v. J. Hacker Co., 688 F.2d 78, 81 (8^th Cir. 1982).
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^4. Fed. R. Evid. 103(a)(2).
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^5. E.g., United States v. King, 75 F.3d 1217, 1223 (7^th Cir. 1996); Porter-Cooper v. Dalkon Shield Claimants Trust, 49 F.3d 1285, 1287 (8^th Cir. 1995); Holst v. Countryside Enterprises, Inc., 14 F.3d 1319, 1323 (8^th Cir. 1994).
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^6. E.g., Heyne v. Caruso, 69 F.3d 1475, 1481 (9^th Cir. 1995).
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^7. E.g., United States v. Graves, 5 F.3d 1546, 1551-1552 (5^th Cir. 1993).
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^8. To preserve a contention that an instruction given by the trial court was ambiguous or provided insufficient guidance to the jury, counsel must also tender a better instruction. See e.g., Angarita v. St. Louis County, 981 F.2d 1537, 1547 (8^th Cir. 1992); McCleary v. Armstrong World Indus., Inc., 913 F.2d 257, 260 (5^th Cir. 1990).
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^9. See e.g., Holloway v. Alexander, 957 F.2d 529, 531 (8^th Cir. 1992); Dunkin Donuts of Am., Inc. v. Minerva Inc., 956 F.2d 1566, 1570 (11^th Cir. 1992). In addition, some courts have held that the failure to supply supporting authority for a proposed instruction waives any challenge to the failure to give that instruction. E.g., Moore v. McGraw Edison Co., 804 F.2d 1026, 1033 (8^th Cir. 1986).
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^10. See e.g., United States v. McNeese, 901 F.2d 585, 609 (7^th Cir. 1990); Ouimette v. E.F. Hutton & Co. 740 F.2d 72, 76 (1^st Cir. 1984); Litherland v. Petrolane Offshore Constr. Servs., Inc., 546 F.2d 129, 133 n.4 (5^th Cir. 1977); Bissett v. Ply-Gem Indus., Inc., 533 F.2d 142, 145-146 (5^th Cir. 1976).
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^11. See e.g., Heller Int'l Corp. v. Sharp, 974 F.2d 850, 856 (7^th Cir. 1992); Jerlyn Yacht Sales, Inc. v. Roman Yacht Brokerage, 950 F.2d 60, 68 (1^st Cir. 1991).
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^12. See generally 9 C Wright & A. Miller, Federal Practice and Procedure § 2536, at 593 (1971).
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^13. See e.g., Hinds v. General Motors Corp., 988 F.2d 1039, 1045-1046 (10^th Cir. 1993); Pstragowski v. Metropolitan Life Ins. Co., 553 F.2d 1,3 (1^st Cir. 1977).
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^14. E.g., Charbonnet v. Lee, 951 F.2d 638, 643 (5^th Cir. 1992); Anderson v. United Tel. Co., 933 F.2d 1500, 1503-1504 (10^th Cir. 1991);
National Indus. Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11^th Cir. 1986).
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^15. See e.g., Kafka v. Truck Ins. Exchange, 19 F.2d 383, 385-386 (7^th Cir. 1994).
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