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The First Step in an Appeal: Keeping Track Of Error During the Trial

"This post-trial motion has been prepared without the benefit of a transcript of the trial proceedings. The plaintiff/defendant hereby incorporates all other allegations of error which have not been specifically noted in this motion."

All experienced appellate practitioners have frequently read paragraphs in post-trial motions similar to the language just noted during the course of their careers. Apparently, the trial lawyers who prepare these types of motions are not aware of the fact that this language will not preserve any allegation of error on appeal whatsoever.

The beleaguered trial lawyer may respond that the pressures of trial make it extremely difficult to recall those events or rulings which could form the basis for a winning issue on appeal. After all, the objective at trial is to win a favorable verdict, not consider the consequences of failure! This is an understandable complaint, particularly when only one lawyer is handling the entire trial for any party. However, many of these difficulties could be avoided by a simple expedient: the list of pre-trial and trial error.

The first and most effective step in preparing for an appeal is maintaining a list of alleged error as the case progresses. The complaint about trial pressures certainly does not apply to the presentation of pre-trial motions. In most instances, error in the denial of most pre-trial motions can be preserved by a simple sentence: "The trial court erroneously denied the motion to quash arrest and suppress evidence." In this way, a brief list of the adverse rulings on motions can preserve a wealth of issues for appeal.

Though the situation is more difficult with respect to trial objections or rulings, experienced counsel know the type of legal and factual challenges they will face while they prepare for the examination or cross-examination of various witnesses. When these issues arise at trial, most of them should come as no surprise to those attorneys who have adequately prepared their cases. The same is true with respect to exhibits sought to be introduced or that were excluded from evidence. Thus, the anticipation of objections or adverse rulings can make the process of "keeping the list" much easier during the course of trial.

Naturally, in the most complex and lengthy cases, a transcript of the proceedings at trial may be essential to preparation of an effective post-trial motion. But most trials do not fall into this category and most successful appeals focus upon a very limited number of issues. In these situations, the need for a transcript before preparing the post-trial motion can be minimized by requesting only a portion of the report of proceedings from the court reporter.

This article is not meant to suggest that post-trial motions may be very general in nature and still preserve error on appeal. In fact, allegations of trial error must be fairly specific in order to argue the same issue on appeal. Thus, it is not sufficient to simply allege that the court excluded certain evidence or admitted other evidence over the objection of counsel.

Instead, it is necessary to make an allegation such as: "The trial court improperly admitted the hearsay testimony of Mr. Jones regarding the statement of Mrs. Smith that she observed the defendant fall to the ground". Just as in the case of the quotation at the beginning of this article, allegations such as "the court improperly excluded the testimony of certain defense witnesses", will not preserve any error for appeal.

"Keeping the list" is not the sole answer to the problem of preserving trial error, nor could it be an adequate substitute for obtaining experience at the trial court or reviewing court level. However, laying your notepad in front of you during the course of trial is preferable to trying to rely upon one's memory after the verdict has been returned or incurring the formidable cost and time involved in re-reading the trial transcript before preparing a two-page motion.

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