Gaining hands-on skills in trial court and navigating the system is a smart next step, especially as a pro se litigant. While nothing replaces real courtroom time, here are some targeted ways to build those abilities, drawing from established resources and strategies used by self-represented folks.
Build Trial Skills Through Simulation and Observation
- Courtroom Observation: Start by attending public trials in your local courts (e.g., if you're near Cedar Rapids, check Linn County District Court or federal courts in the Northern District of Iowa). Sit in on civil or criminal proceedings similar to your interests—note how attorneys (or pro se parties) handle openings, witness exams, objections, evidence presentation, and closings. Many courts stream sessions online via platforms like YouTube or their websites; for example, the U.S. Courts website has archived federal trials you can watch anytime.
- Mock Trials and Role-Playing: Join or create mock trial scenarios. Resources like the American Mock Trial Association offer free guides for high school/college-level simulations, but adapt them for pro se practice. Apps like "TrialPad" or free tools in Zoom can help simulate hearings—practice arguing motions or cross-exams with a friend acting as opposing counsel or judge.
- Online Simulations: Platforms like iCivics (free games on trial processes) or more advanced ones like St. Mary's University School of Law's "Virtual Courtroom" provide interactive trial modules. For negotiation skills (key for settlements), try Harvard's Program on Negotiation free webinars or their "Negotiation Mastery" MOOC on edX.
Navigate the Court System Effectively
- Procedural Mastery: Focus on rules of evidence and civil/criminal procedure for your jurisdiction. Since you've studied FIRAC and Socratic methods, apply them to real dockets—pull public case files from PACER (federal) or state e-filing systems to analyze how cases progress. Books like "Represent Yourself in Court" by Paul Bergman and Sara Berman (Nolo Press, updated editions available) break down navigation step-by-step, including scripts for common interactions.
- Self-Help Centers and Clinics: Most states have free legal aid for pro se folks. In Iowa (based on your location), the Iowa Judicial Branch's Self-Help Forms and Iowa Legal Aid offer guides for filing, motions, and appeals. If your prior queries were NJ-focused, their Judiciary's Self-Help Resource Center has similar tools. Attend virtual clinics—many bar associations host pro se workshops (e.g., via Zoom) on topics like discovery or pre-trial conferences.
- Advanced Tactics: To "negate" or challenge the system (e.g., motions to dismiss, suppress evidence, or for summary judgment), study writs and appeals deeply. Your background in extraordinary writs and maxims is a plus—practice drafting them using templates from sites like Justia or FindLaw. For bonds/traffic as judgments, review state statutes (e.g., Iowa Code Title XVI for criminal procedure) and case law via free databases like Google Scholar or Caselaw Access Project.
Recommended Courses and Resources for 2026
Since you're already course-savvy, here's a curated list of current options to level up:
- Trial Advocacy: Enroll in "Trial Advocacy" on Coursera (offered by Northwestern or similar; focuses on persuasion, objections, and strategy). Or try Udemy's "Winning in Court: Pro Se Litigation Mastery" (updated 2025 version emphasizes video simulations).
- Negotiation and Court Navigation: Beyond Jurisdictionary, check "The Art of Advocacy" by Noah Messing on Yale's Open Courses (free lectures on trial techniques). For system navigation, the National Center for State Courts' online modules cover e-filing, remote hearings, and pro se pitfalls.
- AI-Enhanced Practice: Since you mentioned AI for legal research, use tools like Casetext's CoCounsel or free ones like Harvey AI for mock brief drafting. Practice by inputting hypotheticals: "Draft a motion to suppress evidence in a traffic stop case."
- Communities: Join forums like Reddit's r/prose or r/LegalAdvice (read-only for ideas), or pro se groups on LinkedIn. TikTok/YouTube channels like "Pro Se Nation" or "Sovereign Living" (filter for evidence-based ones) can inspire, but cross-check with official sources to avoid misinformation.
PRESERVING AND PROTECTING THE TRIAL RECORD
Remember, success often comes from iterating—file small claims cases or volunteer as a court watcher to apply what you learn. If you're prepping for a specific case, local bar associations sometimes offer limited-scope consultations (unbundled services) without full representation. Keep pushing; with your foundation, you're well-positioned to handle trials confidently. If you have a particular scenario or jurisdiction in mind, I can dive deeper!
Tips from sources: In trials, request statements of decision on key issues to force detailed rulings. If a judge avoids ruling, file a motion to compel or mandamus petition to force one.
Preserving The Record For Appeal: Top Ten Mistakes
The four saddest words from the Court of Appeal are these: "Great argument; not preserved." Alas, even the sharpest legal mind and best honed rhetoric cannot resurrect a terrific argument that was not properly preserved for appellate review. Fortunately, unlike the need to file a timely notice of appeal, record preservation is not jurisdictional. Reviewing courts also have considerable leeway deciding to "save" an argument that was arguably waived. And some issues, particularly pure questions of law, can usually be considered on appeal even if not raised below.
Nonetheless, many good appeals have been lost because of counsel's failure to preserve the record. Here are ten key mistakes to avoid:
MISTAKE NO. 1: Ignoring record preservation at the motion stage (particularly summary judgment)
Most civil cases never make it to trial but are decided on motion for summary judgment or other pretrial motion. Here, too, record preservation issues abound. Motions for summary judgment can be especially tricky and present several opportunities for making big mistakes.
In preparing a motion for summary judgment, remember the cardinal rule that if evidence is not in the separate statement, it does not exist. Importantly, it is not sufficient simply to file or lodge the evidence and cite to it in the memorandum of points and authorities. The comprehensiveness of the separate statement is important to record preservation because the court of appeal will affirm a summary judgment if it is correct on any legal theory, not just the legal theory relied on by the trial court (or even necessarily the legal theories raised by the parties in the trial court). In Taylor v. California State Automobile Assn. (1987) 194 Cal.App.3d 1214, 1223, the Court upheld a summary judgment on a ground offered for the first time on appeal where the opposing party had an opportunity to present evidence on a factual issue but failed to do so. Similarly, in Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 68-69, the court upheld the trial court's grant of summary judgment on a ground not specifically tendered by the moving party but rather identified by the trial court. The trial court had applied the new legal theory to an undisputed material fact put in issue by the parties' separate statement of undisputed material facts.
Remember also that unless objections to opposing evidence are made at or before the summary judgment hearing, they are waived. And, even more fundamentally, recent case law holds that Code of Civil Procedure section 437c requires the trial court to hold a hearing on the summary judgment motion; the court of appeal will reverse a summary judgment entered without a hearing. On the other hand, while the statute also requires the trial court to specify its reasons for granting or denying a motion for summary judgment, the trial court's failure to do so is usually harmless error.
MISTAKE NO. 2: Not focusing on motions in limine
In addition to their potential for shaping the conduct of a trial, motions in limine are also an excellent way of preserving the record for appeal. Why? Because they are directed to specific issues, in writing, and unambiguously draw issues to the court's attention for decision. They also avoid the sometimes difficult decision of foregoing an argument—even a good argument—for fear of annoying the judge or alienating a jury. As the court noted in Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 337, the purpose of a motion in limine "is to avoid the obviously futile attempt to 'unring the bell' in the event a motion to strike is granted in the proceedings before the jury."
One important caution: even the best motions in limine may fail to preserve the record if they are not filed with the court or made the subject of a specific ruling. It is also helpful, but not essential, for the court reporter to transcribe the in limine hearing.
MISTAKE NO. 3: Not objecting
The classic failure to preserve the record is not making appropriate objections, particularly regarding the admission and exclusion of evidence. For example, courts of appeal will not generally set aside a verdict or finding based on the erroneous admission of evidence unless the other party made a timely objection to such evidence that makes clear the specific ground of the objection. Evidence Code § 353(a). Likewise, an erroneous exclusion of evidence may not be reviewable on appeal unless the proponent made an adequate offer of proof. See Evid. Code § 354. A party also cannot assert misconduct by opposing counsel as a basis for appeal unless he or she objected to counsel's actions at the time. See Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 129-130.
In addition, and although various exceptions exist, the general rule is that a party waives legal theories that arise for the first time in the court of appeal. See, e.g., Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 846. On the other hand, if the "new theory" raises a purely legal issue and the underlying facts are not substantially in dispute, reviewing courts can (and usually will) consider it on appeal. See Yeap v. Leake (1997) 60 Cal.App. 4th 591, 599. Interestingly, a respondent is usually able to assert a new theory on appeal in order to support a judgment (even if the trial court did not rule on that basis) as long as doing so would not unfairly prejudice the appellant. See D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1, 18-19.
MISTAKE NO. 4: Not devoting sufficient time to preparing – and objecting to – jury instructions
An erroneous jury instruction is one of the very best appellate issues for an appellant, particularly since the court of appeal will review the instruction de novo.
But record preservation issues abound. The basic rules seem simple enough. Erroneous instructions requested by the other side are deemed excepted to. Practically speaking, however, on most critical issues each side proposes its own instructions; and a party in most cases cannot appeal from an erroneous instruction it requested. A party cannot claim error in the court's failure to give a particular instruction if the party did not request that instruction. Similarly, a party cannot claim a correct jury instruction was too general or incomplete unless it requested a clarifying instruction.
Beware: if the court of appeal cannot tell from the record who requested an instruction, it will assume the appellant requested the instruction and thus waived the error. Consider this basic tenet against the backdrop of the following common scenario. At the trial readiness conference, often neither side's jury instructions are complete and either the parties' draft instructions are not actually filed or the draft instructions the parties do file have gaping holes. Arguments about the jury instructions with the judge may not take place until well into the trial and are often off the record. The judge may make his or her own changes, to which it is awkward for the parties to object. Then, when back on the record, the judge may say something to the effect of: "It looks like all of the changes we have discussed to the jury instructions you prepared have been properly made," and the parties will acquiesce. The result: there is effectively no record on which a party can base instructional error.
The solution: prepare jury instructions early, before the heat of trial. Make sure your initial set of proposed instructions is actually filed (and you have a copy with a conforming stamp). If the parties' discussions with the judge regarding the instructions are not reported, make sure to put your objections on the record. Make sure the final set of instructions used by the court shows who offered it, its disposition (given, refused, modified), the specific modifications, and who requested them. If the issue is a critical one, you may want to file a trial brief on the issue.
Take heart: if you fail to preserve the record as to the jury instructions during trial, all may not be lost. It is sometimes possible to reconstruct the record by filing declarations in connection with post-trial motions.
MISTAKE NO. 5: Giving short shrift to verdict forms
When a jury returns a general verdict on multiple causes of action, the court of appeal will presume the jury found in favor of the prevailing party on each cause of action. On appeal challenging the sufficiency of the evidence, the appellate court will affirm so long as the judgment is supported by substantial evidence on any one sufficient cause of action. The court will make an exception and not affirm the general verdict where the jury was given two instructions on the same issue, one correct and one incorrect. The presumption in favor of the correctness of the general verdict is also overcome where a jury responds to special interrogatories or completes a special verdict form.
The same concerns about record preservation apply to special interrogatories or a special verdict form as apply to jury instructions. Make sure the record is clear on who proposed which special verdict form, who proposed the changes adopted, and any objections you have to the form used.
MISTAKE NO. 6: Not requesting a statement of decision (non-jury trials)
After a court trial, there are no jury instructions to review to make sure the trial court followed the law, and no special verdict form or special interrogatories to make sure the trial court correctly decided all of the necessary ultimate facts. Instead, if one of the parties makes the proper request, the trial court is required to issue a statement of decision. The statement of decision, which gives the trial court's reasoning on particular disputed issues, helps the court of appeal determine whether the trial court's decision is supported by the evidence and the law.
If no statement is requested, the court of appeal will presume the trial court made all of the factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the appeal will often be reduced simply to a substantial evidence review. The same holds true where the trial court does issue a statement of decision, but the statement of decision is deficient because it is ambiguous or fails to resolve principal controverted issues. If the appellant fails to specifically and properly object to the deficiencies in the trial court, the defects are waived and it is presumed the trial court made the factual findings necessary to support the judgment.
One part of preserving the record on appeal in a court trial, therefore, is first to request a statement of decision as to specific issues. If the court issues such a statement, a party claiming deficiencies in the statement must preserve the record by bringing the defects to the trial court's attention. Also, a tentative decision or memorandum of intended decision by the trial court is not a substitute for a statement of decision unless the trial court expressly deems it to be so. If a trial court refuses to render a statement of decision or refuses to correct a deficient statement of decision, the court's refusal is reversible error.
MISTAKE NO. 7: Not moving for a new trial on the grounds of excessive damages
In the great majority of cases, it is not necessary to file post-trial motions for either judgment not withstanding the verdict or new trial in order to preserve an issue for appeal. There is, however, one important exception. Arguments based upon excessive or inadequate damages must first be made in a motion for new trial or they cannot be raised for the first time on appeal. See CCP § 657(5). See also Christiansen v. Roddy (1986) 186 Cal.App.3d 780, 789. A new trial motion is not usually necessary, on the other hand, to make other types of damages arguments on appeal -- for example, that the court applied the wrong measure of damages or improperly instructed the jury as to damages.
MISTAKE NO. 8: Inviting error
Here, the general principle is clear: an appellant cannot complain about an error that it created (or invited). Classic examples of invited error would be a jury instruction you requested, a verdict form you submitted, or reliance upon evidence that you objected to at trial. In this sense, "invited error" is just another name for estoppel. See Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686: "Where a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error."
On the other hand, one of the more generous principles of California law is that not objecting to an incorrect jury instruction is not invited error. Nor, as discussed above, does failing to object to an erroneous instruction waive that issue for review on appeal. Neither does requesting a fall-back instruction when the court refuses to give a proper instruction that you requested, or requesting an instruction only because the court erroneously refused to exclude some particular issue at trial. See Horseman's Benevolent & Protective Association v. Valley Racing Association (1992) 4 Cal.App.4th 1538, 1555.
MISTAKE NO. 9: Accepting the benefits of a judgment/voluntary compliance
Despite standing to appeal from an appealable judgment or order, a party may lose the right to appeal by complying with, or accepting the benefits of, the judgment. This does not often happen, but you might be surprised. For example, under certain circumstances, paying a judgment could run the risk of waiving the right to appeal. However, the court of appeal will imply a waiver only if the payment is either by way of compromise, or coupled with a voluntary agreement not to appeal. The court will not imply a waiver where compliance with or satisfaction of the judgment was compelled or coerced by threat of execution (for example, where a judgment debtor pays a judgment to avoid posting security on appeal). To be safe, the judgment debtor may want to wait until execution is actually threatened and then get the creditor's agreement that payment does not constitute waiver of the right to appeal.
There is also a risk that by voluntarily accepting all or part of the benefits of the judgment, a party impliedly waives the right to appeal. For the court of appeal to find waiver, the appellant must have clearly, unmistakably, unconditionally and voluntarily acquiesced in the judgment by accepting its benefits. Even then, there are numerous exceptions to the rule.
MISTAKE NO. 10: Not requesting reconsideration from the court of appeal
One last pitfall: the need to pay attention to preserving the record does not necessarily end in the trial court. One important issue of record preservation may come into play if you lose in the court of appeal and intend to petition the California Supreme Court for review. Here's how. If you intend to petition the Supreme Court for review of any issue or material fact that was omitted from or misstated in the opinion of the court of appeal, you must first file a motion for reconsideration by the court of appeal. See Rule 29(b)(2), Cal. Rules of Court: the Supreme Court will not normally consider "any issue or any material fact that was omitted from or misstated in the opinion of the Court of Appeal, unless the omission or misstatement was called to the attention of the Court of Appeal in a petition for hearing." In addition, Rule 29(b)(1) generally provides that the Supreme Court likewise will not ordinarily not review any issue that could have been, but was not, timely raised in the briefs in the court of appeal.
Tips On Preserving Arguments For Appeal
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. See e.g., Doty v. Sewall, 908 F.2d 1053, 1056 (1st Cir. 1990). 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.
Even if the court denies the motion in limine outright, it would be prudent to inquire whether the court would entertain objections anew at the time the evidence is introduced. Some appellate courts have adopted a strict rule that, notwithstanding a district court’s categorical denial of a motion in limine, evidentiary error is not preserved absent a contemporaneous object. See e.g., Rojas v. Richardson, 703 F.2d 186, 188-190 (5th Cir. 1983); Starr v. J. Hacker Co., 688 F.2d 78, 81 (8th Cir. 1982).
Such a rule necessitates that counsel either object at the time of admission or receive a standing objection at the time the trial court denies the motion in limine.
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." Fed. R. Evid. 103(a)(2). 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. E.g., United States v. King, 75 F.3d 1217, 1223 (7th Cir. 1996); Porter-Cooper v. Dalkon Shield Claimants Trust, 49 F.3d 1285, 1287 (8th Cir. 1995); Holst v. Countryside Enterprises, Inc., 14 F.3d 1319, 1323 (8th Cir. 1994).
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 state, others have expressly held that, even then, an offer of proof is required. E.g., Heyne v. Caruso, 69 F.3d 1475, 1481 (9th Cir. 1995); E.g., United States v. Graves, 5 F.3d 1546, 1551-1552 (5th Cir. 1993). In my view, prudence dictates making the offer of proof.
E. Preserving Instructional Error
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. 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 (8th Cir. 1992); McCleary v. Armstrong World Indus., Inc., 913 F.2d 257, 260 (5th Cir. 1990). 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.
To preserve a challenge to the failure to instruct on a particular principle, counsel must both tender a proposed instruction that accurately states the principle and object when the judge fails to give it. See e.g., Holloway v. Alexander, 957 F.2d 529, 531 (8th Cir. 1992); Dunkin Donuts of Am., Inc. v. Minerva Inc., 956 F.2d 1566, 1570 (11th 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 (8th Cir. 1986).
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). See e.g., United States v. McNeese, 901 F.2d 585, 609 (7th Cir. 1990); Ouimette v. E.F. Hutton & Co. 740 F.2d 72, 76 (1st Cir. 1984); Litherland v. Petrolane Offshore Constr. Servs., Inc., 546 F.2d 129, 133 n.4 (5th Cir. 1977); Bissett v. Ply-Gem Indus., Inc., 533 F.2d 142, 145-146 (5th Cir. 1976). This rule is not ironclad, but there is no good reason for taking a chance by presenting a skewed or otherwise inaccurate instruction. See e.g., Heller Int’l Corp. v. Sharp, 974 F.2d 850, 856 (7th Cir. 1992); Jerlyn Yacht Sales, Inc. v. Roman Yacht Brokerage, 950 F.2d 60, 68 (1st Cir. 1991).
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. See generally 9 C Wright & A. Miller, Federal Practice and Procedure ‘ 2536, at 593 (1971). 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. See e.g., Hinds v. General Motors Corp., 988 F.2d 1039, 1045-1046 (10th Cir. 1993); Pstragowski v. Metropolitan Life Ins. Co., 553 F.2d 1,3 (1st Cir. 1977). 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, but the trial court adhered to its strict understanding of the rule. E.g., Charbonnet v. Lee, 951 F.2d 638, 643 (5th Cir. 1992); Anderson v. United Tel. Co., 933 F.2d 1500, 1503-1504 (10th Cir. 1991); National Indus. Inc. v. Sharon Steel Corp., 781 F.2d 1545, 1549 (11th Cir. 1986).
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. See e.g., Kafka v. Truck Ins. Exchange, 19 F.2d 383, 385-386 (7th Cir. 1994).
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. See e.g., United States v. Askew, 958 F.2d 806, 813 (8th Cir. 1992); Pryor v. State, 861 S.W.2d 544, 547 (Ark. 1993).
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.
The Basics of Preserving Error for Appeal
A Trial Guide for Making a Better Appellate Record
All pro se make mistakes. Often, they are small and can be fixed. But that is not always the case. And sometimes it is those small mistakes that carry the harshest consequences.
Nowhere are harsh consequences for small mistakes more common than in the rules governing error preservation for appeal. A moment’s hesitation, a poorly phrased objection, one too many questions – that is all it takes to waive or forfeit an issue. The consequences can be devastating. Within seconds, inattentive counsel can lose an appeal before one ever gets filed.
Avoiding this result requires vigilance and preparation. While the rules for preserving error on appeal are extensive and – in some areas – complex, trial counsel must have a firm grasp of the basics. That is what this article aims to provide – a trial lawyer’s guide for not only avoiding some of the most common preservation mistakes at trial but also making the best record possible.
THREE CARDINAL RULES FOR PRESERVING ERROR
While the rules for preserving error on appeal are nuanced and can vary by issue, broadly speaking, there are three cardinal rules. You need 1) a timely and specific objection or motion, 2) a ruling from the court and 3) a record establishing both.
Making a Timely and Specific Objection or Motion
Preserving error starts with a timely objection, request or motion. Error preservation rules are grounded on principles of procedural fairness and judicial economy, the idea being “the best place to correct error in the first instance is in the trial court where ... the principal focus of the litigation should be.”[1] For that to occur, parties must raise issues in a timely and specific manner, giving the court “the opportunity to take corrective action and to avoid unnecessary error.”[2]
Timeliness. The timeliness of a motion or objection depends on the issue. A summary of the applicable timing requirements for some of the most common objections and motions at trial is provided:
| TIMING REQUIREMENTS FOR COMMON TRIAL OBJECTIONS AND MOTIONS | |
| Issue | Deadline(s) |
| Jury Selection | Before the jury is sworn[3] |
| Evidentiary Rulings | At the earliest possible opportunity after the objection becomes apparent[4] |
| Sufficiency of the Evidence | |
| At the close of the plaintiff’s case, and if a defense case is presented, at the close of all the evidence[5] |
| At the close of the state’s case, and if a defense case is presented, at the close of all the evidence[6] |
| Before the case is submitted to the jury and renewed after the jury returns its verdict[7] |
| At the close of the government’s case, and if a defense case is presented, at the close of all the evidence.[8] The defendant may also “move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or the court discharges the jury, whichever is later.”[9] |
| Jury Instructions | Before the jury is instructed[10] |
| Verdict Form | Before submission to the jury[11] |
| Form of the Verdict | Before the jury is discharged[12] |
| Trial Misconduct | Promptly, at least before the jury retires[13] |
Depending on the circumstances, timeliness may require repetition. While it is generally unnecessary to repeat or renew an objection made at trial after it has been conclusively overruled,[14] if the evidence or circumstances have changed, a renewed objection may be required.[15] That the court overrules an objection to a particular piece of evidence does not necessarily preserve an objection to all future evidence or testimony offered on the same general topic.[16] When in doubt, counsel should object and ask for a continuing objection.[17]
When inadmissible evidence is introduced before an objection can be interposed, counsel should object and make a motion to strike. Although dated and subject to criticism, there are cases in Oklahoma holding that once a witness has answered a question, a delayed objection alone will not preserve the issue for appeal without a motion to strike.[18]
Specificity. A proper objection must also be specific. While the degree of specificity required will often vary depending on the issue and the context in which it is raised, the basic requirement remains the same: An objection must be “specific enough to allow the trial court to address the matter,”[19] giving the court “the opportunity to correct its action in the first instance.”[20] While it is clear that a general objection that evidence is “incompetent,” “improper” or “inadmissible” is not enough,[21] the degree of specificity required is not reducible to precise a definition or quantification. It all depends on context. When in doubt, counsel should generally err on the side of specificity.[22]
The specificity requirement requires parties to state all grounds on which an asserted objection is based. If a party believes a piece of evidence is inadmissible on three grounds but only states one of those grounds in its objection, it has forfeited the other two.[23]
While they generally cannot independently preserve an issue or objection for appeal, motions in limine and trial briefs can play an important role in building specificity for objections anticipated at trial. It is no secret that the “psychological pressure of low-tone bench conferences” often leads attorneys to make objections in a “truncated” manner.[24] If an attorney cannot state the specific grounds for an objection without a lengthy explanation or argument, it can be helpful if the grounds for the objection have already been stated elsewhere in the record, which counsel can then refer back to in stating or renewing the objection at trial.[25]
Obtaining a Ruling
The second cardinal rule for preserving error is to obtain a ruling. While it may seem small, this requirement is nonetheless critical. Appellate courts review rulings, not unresolved objections.[26] Thus, after making a proper objection, it is counsel’s “obligation to obtain a ruling ... or such objection is waived on appeal.”[27]
To preserve error, a ruling must be “definitive.”[28] A court’s nonfinal statement about the way it is inclined to rule is not enough.[29] Nor is a ruling that is vague or conditional.[30] If the court reserves its ruling on an objection, it is the objecting party’s obligation to press for a positive ruling, even if that ruling is simply a refusal to rule.[31]
Creating a Record
When it comes to preserving error for appeal, nothing an attorney does at trial matters unless it is documented in the record. Counsel can make the best objections and obtain the clearest rulings from the court, but if it is not in the record, it is treated as though it never happened.[32] This is important because decisions “reviewed on appeal [are] presumed correct unless the contrary is shown by the record.”[33] It is counsel’s obligation to create a record adequate for appellate review, ensuring that is clear and complete, both in general and in particular with any legal issues that overtly come to a head at trial.[34]
A complete record captures all relevant objections, motions, rulings, evidence, nonadmitted exhibits and other proceedings relevant to an issue on appeal. Counsel must ensure that all relevant proceedings are recorded or, if a court reporter is unavailable, otherwise documented in the record through a journal entry or narrative statement of the evidence or proceedings.[35]
Creating a complete record requires a methodical approach for handling exhibits. All counsel should have a system in place to track in real time which exhibits have been offered and admitted into evidence. But it’s just as important to track how exhibits and materials not admitted into evidence are preserved for the record. While the clerk usually retains copies of nonadmitted exhibits for the record, counsel should confirm that’s the case. The same should be considered for impeachment-only exhibits. Demonstrative evidence, including a witness’s markings on demonstrative evidence, should be preserved, oftentimes with a photograph if the exhibit is of a size not easily maintained with the paper record. For the sake of clarity, all the above should be captured, labeled, referenced accordingly and submitted for inclusion – as an appellate or court exhibit – in the official record. Consistently practicing good trial record hygiene will help avoid logistical preservation issues, whether the issues were obvious or nonobvious as they sprang up during trial.
In addition to being complete, the record should also be clear. A clear record is one that successfully captures the experience as if the appellate court were physically present for the trial. Considering that the court reporter’s transcription (and not an audiovisual recording) is how the appellate court reviews what happened below, it behooves counsel not only to speak clearly but to also meta-narrate what might otherwise escape transcription. Clarifying a witness’s “uh-huh” as either a “yes” or “no” response can have a big impact on appeal. Being precise when referring to “Defendant’s Exhibit 3” as opposed to “this exhibit” avoids future confusion. Describing nonverbal actions that occur at trial – such as a witness’s gesture about the size of an object or their behavior in winking, laughing, crying, making facial expressions or looking to opposing counsel for approval – ensures all relevant underlying circumstances at trial are preserved in the record.
ADDITIONAL ISSUE-SPECIFIC PRESERVATION REQUIREMENTS AND BEST PRACTICES
In addition to the three cardinal rules set forth above, there are a variety of additional issue-specific preservation rules that often come up at trial. From voir dire through final jury instructions, counsel should be familiar with and prepared for how to appropriately object and preserve their objections for appeal in these commonly seen areas as well.
Voir Dire
Jury selection has its own set of appellate issues. One nuanced aspect to be aware of relates to preserving contested challenges for cause. “In order to properly preserve an objection to a denial of a challenge for cause,” a party must show it “was forced over objection to keep an unacceptable juror.”[36] To do so, counsel should 1) use a peremptory challenge to excuse the challenged-for-cause juror,[37] 2) exhaust all peremptory challenges,[38] 3) request additional peremptory challenges[39] and 4) after the conclusion of the challenges but before the jury is empaneled, make a record of who else counsel would have excused and why.[40]
Motions in Limine
With limited exceptions, rulings on motions in limine generally preserve nothing. In Oklahoma, rulings on motions in limine are “advisory until finally determined at trial.”[41] “Consequently, liminal rulings are not appealable, and only evidentiary rulings during trial remain subject to review.”[42] At the federal level, the 10th Circuit has carved out a limited exception to this rule where the trial court makes “a definitive, well-thought-out pretrial ruling on a subject that will not be affected by the evidence that comes in at trial.”[43] But Oklahoma state courts have not followed this trend, sticking with the traditional rule requiring a party to make a renewed objection or offer of proof at trial.[44] Whether in state or federal court, “[p]rudent counsel [should continue to] renew objections at trial,” given “the inherent risk that the appellate court might find that the objection was of the type that must be renewed and that the party, by relying on the motion in limine, has waived the objection.”[45]
Offers of Proof
If a ruling excludes evidence, the proponent of the evidence must make an offer of proof.[46] An offer of proof is the procedure whereby excluded evidence is placed in the record.[47] Its purpose is not only to enable “the trial judge to make informed decisions based on the substance of the evidence,” but also to create “a clear record that an appellate court can review to ‘determine whether [excluding the evidence] was reversible error.’”[48]
But “merely telling the court the content of proposed testimony is not an offer of proof.”[49] Instead, “the proponent must, first, describe the evidence and what it tends to show and, second, identify the grounds for admitting the evidence.”[50] In doing so, specificity is key: As courts have acknowledged, “[s]pecificity and detail are the hallmarks of a good offer of proof” and “conclusory terms, especially when presented in a confused manner, mark poor ones.”[51]
When it comes to witness testimony, there are four ways to make an offer of proof:
- Examine the witness on the record outside the presence of the jury,
- Have counsel dictate the substance of the witness’s testimony into the record,
- Have counsel put a written statement of the witness’s testimony into the record or
- Have the witness submit a signed statement of their testimony into the record.[52]
Of these methods, the 10th Circuit has described the first as the “most desirable” and the second as the “least favored,” observing that narrative summaries are more likely to lack the specificity and detail required for a proper offer of proof.[53] While counsel can and generally should seek to make offers of proof via the first method, particularly when the excluded testimony is important or complex, the rule vests “the trial judge with discretion in determining the form of the offer.”[54]
But that discretion is not unlimited. “[I]t is an error for the trial court to permit [a party to make] a seasonable offer of proof.”[55] When a court does so or otherwise restricts a party’s ability to make a proper offer of proof, counsel should object and prepare and file a written offer of proof.
Opening the Door
While counsel must regularly balance the objective of persuading the factfinder at trial with preserving potential legal issues for appeal, special care should be taken to not inadvertently “open the door” for legally problematic evidence. Under the rule, “[t]he party who first introduces improper evidence cannot object to the admission of evidence from the adverse party relating to the same matter.”[56]
This issue can come up in any number of ways at trial. But one area where it frequently occurs is when counsel tries to “take the sting out” of the other side’s evidence. Here’s the typical scenario: The other side has some prejudicial, arguably inadmissible evidence against your client. You move in limine to exclude it. The court denies your motion. As a result, you want to “take the sting out” of the evidence by contextualizing it in opening statements or on direct examination before the opposing counsel can parade it around before the jury.
It is at this point that counsel should stop and evaluate whether “taking the sting out” is worth potentially waiving the objection to the evidence’s admission. As a pure matter of timing, the general rule is that the first party to introduce evidence waives any objection to an opponent’s later admission of the same or similar evidence – even when initially introduced to preemptively address such evidence.[57] This remains true whether the door is opened on direct examination,[58] cross-examination[59] or even during the opening statements despite the court’s admonitions to the jury that the statements of counsel are not evidence.[60] Should counsel wish to preserve the issue for appeal, the best practice is to 1) not be the first to raise challenged evidence regardless of the stage of the case, 2) object when the other side first raises it and 3) if the court allows the evidence, keep your discussion of challenged evidence “confined to matters” first raised by the other side (meaning, don’t expand the scope).[61]
Trial Misconduct
As with any other issue, counsel must contemporaneously object to trial misconduct to preserve the matter for appeal.[62] This includes not only misconduct by opposing counsel but anyone else in the courtroom whose conduct may impact the fairness of the proceeding – jurors, attendees, witnesses, court staff and, yes, even the judge.[63]
When objecting to trial misconduct, counsel should expressly request any desired relief, typically a curative instruction or a mistrial, and be prepared to further object should the court’s curative response be inadequate.[64] Absent such steps, any dispute over the adequacy of the court’s curative measures will be deemed forfeited and reviewed for plain error[65] if not entirely waived.[66]
Jury Instructions
Erroneous jury instructions are one of the most common areas where district courts get reversed. But to have such impact, counsel must make a clear record. The process starts with preparing a set of proposed jury instructions. While it is the “court’s duty to accurately state the law of the case,” it is the party’s “duty to frame the issues,” ensuring the “instructions accurately reflect the issues tended by the evidence adduced at trial.”[67]
But preparing a set of proposed jury instructions is just the beginning. Near the conclusion of the trial, the court – armed with both parties’ proposed instructions and any written objections – will prepare its own set of draft instructions. Judges all have their own systems for doing so, often involving informal, off-the-record conferences and the exchange of preliminary drafts and redlines. But regardless of the system, by rule, the court must give the parties an opportunity to make any final objections to the court’s proposed instructions on the record before the instructions are delivered.[68] This is often referred to as the “instructions conference” or “charge conference,” and it is at that time that parties must state any remaining objections to the court’s instructions on the record to preserve them for appeal.[69]
Objections to jury instructions generally require a greater specificity, particularly in the federal system, where the objecting party must state distinctly the matter objected to and the grounds for the objection.[70] Under this standard, counsel must make an objecting party’s position “abundantly clear.”[71] While state courts in Oklahoma appear to take a less rigid approach,[72] existing precedent on the level of specificity required is limited. As a matter of best practice, counsel should aim to comply with the federal standard, regardless of the forum.
A word of caution regarding off-the-record conferences and communications: Many judges like to work through objections to jury instructions, at least initially, on an informal basis through off-the-record conferences and communications. As the 10th Circuit has noted, this practice can often lead to the creation of an inadequate record.[73] While there is nothing wrong with trying to resolve objections informally and by agreement, when that process is done, counsel must ask for the opportunity to state any remaining objections on the record.[74] The process will likely involve a fair deal of repetition. When the time comes, counsel must make any on-the-record objections with the requisite specificity, doing so as though any prior off-the-record conferences or communications had never occurred – because, from an appellate perspective, they didn’t.[75]
A final note regarding jury instructions: The Oklahoma Uniform Jury Instructions (OUJIs) are not infallible. While state law ordinarily requires courts to use any applicable OUJIs when instructing the jury, crucially, that mandate does not apply if the court determines that an instruction fails to “accurately state the law.”[76] In that case, “it is the trial judge’s duty to deviate from the OUJIs.”[77] Counsel should not hesitate about objecting to OUJI instructions when an instruction “fails to accurately state the applicable law, is erroneous, or is improper.”[78] The same is true at the federal level with circuit pattern jury instructions. Such instructions “are merely intended to serve as a guide to assist judges and counsel” – “they are not binding”[79] and will often “lag behind [the circuit’s] decisions.”[80]
CONCLUSION
If we were to offer a final word of advice, it would be this: Just do your best. Preserving the record for appeal is hard work. You will likely make mistakes – we all do. But do not let those mistakes distract or discourage you. Stay focused and keep objecting.
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