For the Record: Preserving Issues for Appeal

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1 Illinois Association of Defense Trial Counsel Springfield, Illinois IDC Quarterly Volume 24, Number 4 (24.4.9) Appellate Practice Corner Scott L. Howie Pretzel & Stouffer, Chartered, Chicago For the Record: Preserving Issues for Appeal Long before trial, attorneys spend substantial time and effort preparing to persuade a jury to find in favor of their clients. Despite that effort, of course, sometimes the jury is unconvinced. Responsibly trying a case includes preparing for the possibility of an adverse verdict. If the verdict can be blamed on erroneous rulings that unfairly prejudiced one s client, then an appeal is the natural next step. But if an attorney starts thinking about the appeal only after the jury returns its verdict, then it may be too late. There are many things that must be done during the trial to preserve the record for a potential appeal. Though the chief motivation for doing those things might be to ensure that the arguments will be available on appeal, that effect is largely collateral to the main purpose: prevailing at trial. Thinking about preserving the record for an appeal makes an attorney try the case better in the first place. This column discusses the most common areas in which trial error occurs, as well as the actions that are necessary to preserve such errors for appeal. In addition, it suggests ways in which one can put those actions to use toward winning the trial in the first place so as not to have an appeal at all. Errors in the Admission of Evidence It is imperative to object to the admission of evidence you believe the court should exclude and to do so at the time of its introduction. Uhrhan v. Union Pac. R.R. Co., 155 Ill. 2d 537, 546 (1993); York v. El- Ganzouri, 353 Ill. App. 3d 1, (1st Dist. 2004). This requirement reflects the primary purpose of the waiver rule: to ensure that the trial court has the opportunity to correct the error. See York, 353 Ill. App. 3d at 10. A trial court cannot correct the error and prevent prejudice when the objection is not made as the error occurs. Moller v. Lipov, 368 Ill. App. 3d 333, 342 (1st Dist. 2006) (citing York, 353 Ill. App. 3d at 10). It is particularly important to object even if the trial judge has already denied a motion in limine to bar the evidence in question. If the objection is not renewed when the objectionable evidence is introduced, it is forfeited. Fleming v. Moswin, 2012 IL App (1st) B, 96; Guski v. Raja, 409 Ill. App. 3d 686, 696 (1st Dist. 2011) (citing Simmons v. Garces, 198 Ill. 2d 541, 569 (2002)). It is also important to be specific about the basis for the objection. An objecting party must identify the same basis for the objection in the trial court that will be argued on appeal; grounds not stated are waived on review. In re Estate of Mercier, 2011 IL App (4th) , 16 (quoting Gausselin v. Commonwealth Edison Co., 260 Ill. App. 3d 1068, 1079 (1st Dist. 1994)). It is not always necessary to object every time the challenged matter arises; counsel may object once, outside the presence of the jury, and ask for a continuing objection. Romanek-Golub & Co. v. Anvan Hotel Page 1 of 5

2 Corp., 168 Ill. App. 3d 1031, 1040 (1st Dist. 1988). But, a continuing objection should be used with caution. Ordinarily, continuing objections are not recognized unless the trial court indicates its recognition of the continuing objection. Fleming, 2012 IL App (1st) B, 96 (quoting LaSalle Bank, N.A. v. C/HCA Dev. Corp., 384 Ill. App. 3d 806, 820 n.6 (1st Dist. 2008)). Even if the trial court has acknowledged a continuing objection, the objection might be deemed to expire when the corresponding line of testimony ends a point that can be difficult to determine and may be open to interpretation. It may also be unclear what becomes of a continuing objection if the examination later returns to the same or a similar line of testimony, including on redirect or recross. Where there is any room for doubt, counsel should restate the objection. While a contemporaneous objection is a procedural requirement for the preservation of error, it is also a potential opportunity. Rulings on the admission of evidence are generally interlocutory, and therefore may be subject to reconsideration at any time until final judgment. Cundiff v. Patel, 2012 IL App (4th) , 20. In limited circumstances, the requirement of a contemporaneous objection provides an excuse to reargue a significant point; a trial attorney might reasonably argue that despite the original ruling, the trial has unfolded in a way that calls for reconsideration. This approach should be reserved for instances in which the issue is significant, and counsel believes that the trial judge might have a change of heart about a particular ruling. A judge will justifiably lose patience with an attorney who treats every objection as an excuse to reargue an unsuccessful motion in limine, and there is no sense in being a pest about minor issues. But, because appellate procedure calls for the objection anyway, there are times when it is reasonable to use such an objection as something more than just a technical prerequisite for appellate review. Errors in the Exclusion of Evidence The concerns are different when the alleged error is the exclusion of evidence, and so is the procedure for preserving such errors. While the proper time to object to the admission of evidence is when it is introduced, there is no such precise moment to preserve an objection to the exclusion of evidence. Indeed, since the evidence is not coming in at trial, the objection is to the ruling, not to the evidence itself. Most importantly, if the evidence is not admitted, then it might not be in the record at all and if it is not in the record, then the reviewing court may be unable to determine whether the trial court should have admitted it. These concerns are properly addressed by making an offer of proof. In an offer of proof, counsel presents the excluded evidence on the record but outside the presence of the jury. If circumstances permit, counsel may make a formal offer of proof by presenting a live witness on the stand and eliciting the testimony that has been barred. Cundiff, 2012 IL App (4th) , 20. In the alternative, an informal offer of proof may be sufficient if the attorney informs the court, with particularity, of the substance of the testimony the witness would have given. Id.; see also Hall v. Northwestern Univ. Med. Clinics, 152 Ill. App. 3d 716, 722 (1st Dist. 1987). In either case, the purpose of the offer of proof is to disclose to the trial judge and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether exclusion of the evidence was proper. John J. Moroney & Co. v. Ill. Prop. Tax Appeal Bd., 2013 IL App (1st) , 54 n.3 (quoting People v. Andrews, 146 Ill. 2d 413, 421 (1992)). Just as it is crucial to object to arguably inadmissible evidence, appellate review of the exclusion of evidence depends upon an offer of proof. See Dillon v. Evanston Hosp., 199 Ill. 2d 483, 495 (2002). An offer of proof must be specific in nature and not based merely on speculation or conjecture. Abbinante v. O Connell, 277 Ill. App. 3d 1046, 1050 (3d Dist. 1996). An informal offer of proof may be inadequate if it is neither clear nor obvious from the record what [the witness] would have answered, what the basis for his answer would have been or what purpose his answer would have served. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 452 (1st Dist. 2004). It is not enough, for instance, to tell the court that the Page 2 of 5

3 witness would have testified to what color the traffic light was; counsel must tell the court that she would have testified that the light was red, or yellow, or green. If the offer of proof is too sparse for the reviewing court to determine if the excluded evidence had any relevance to the proceeding, the offer will be deemed inadequate and the alleged error will be forfeited. See Snelson v. Kamm, 204 Ill. 2d 1, (2003). Likewise, an offer of proof must demonstrate that the evidence was admissible. Turgeon v. Commonwealth Edison Co., 258 Ill. App. 3d 234, 241 (2d Dist. 1994). At a minimum, it must show that counsel would have laid a proper foundation. See Cundiff, 2012 IL App (4th) , 23. In the context of expert testimony, for instance, counsel may need to establish that the witness was properly qualified as an expert and that the witness s opinion testimony was properly disclosed before trial. See Ill. S. Ct. R. 213 (eff. Jan. 1, 2007). Like a contemporaneous objection to evidence, an offer of proof can be an opportunity to suggest reconsideration of an adverse order in limine. This can be especially powerful if it is possible to put the actual witness on the stand and elicit the testimony the judge has barred; perhaps the judge will view the evidence differently after seeing and hearing the witness. Again, counsel should use this strategy sparingly and judiciously, and only when the evidence is especially important or the judge seems inclined to reconsider the original ruling. Errors in Jury Instructions Jury instructions are another common source of arguments for reversal on appeal. As with the admission of evidence, a party must make an objection to any jury instruction alleged to be improper or unsupported by evidence at the time an opponent offers the instruction. Otherwise, counsel forfeits the alleged error. Barrick v. Grimes, 308 Ill. App. 3d 306, 309 (4th Dist. 1999). At the same time, counsel must tender an alternate instruction and ask that it be given instead of the one the court intends to give. Vojas v. K-Mart Corp., 312 Ill. App. 3d 544, 549 (5th Dist. 2000). This is a requirement even if counsel maintains that no version of an opponent s instruction is appropriate. Compton v. Ubilluz, 353 Ill. App. 3d 863, 869 (2d Dist. 2004). Providing an alternate instruction in that circumstance can be a daunting task. Counsel should resist the urge to appear cooperative by withdrawing an instruction the trial court has declined to give. An attorney who withdraws a jury instruction effectively forfeits the argument that the court should have given the instruction. See Heavey v. Ehret, 166 Ill. App. 3d 347, 359 (1st Dist. 1988). Errors in Denying Motions for Directed Verdicts Defendants in civil cases should be particularly concerned with the procedural rules concerning directed verdicts. For appellate purposes, it is crucial to understand the differences between the rules for jury trials and those that govern bench trials. In a jury trial, if the court denies a motion for directed verdict at the close of the plaintiff s case, the defendant forfeits the issue for review by putting on evidence unless the defendant renews the request in a post-trial motion. Ellig v. Delnor Cmty. Hosp., 237 Ill. App. 3d 396, (2d Dist. 1992). The Code of Civil Procedure sets forth this rule in the section governing post-trial motions in jury cases: Reserved ruling on motion for directed verdict Post-trial motions in jury cases. (a) If at the close of the evidence, and before the case is submitted to the jury, any party moves for a directed verdict the court may (1) grant the motion or (2) deny the motion or reserve its ruling thereon and submit the case to the jury. If the court denies the motion or reserves its ruling thereon, the motion is waived unless the request is renewed in the post-trial motion. Page 3 of 5

4 735 ILCS 5/2-1202(a) (emphasis added); see also Ellig, 237 Ill. App. 3d at 404. While section refers to motions for directed verdict at the close of the evidence, the Ellig court applied the same principle to a motion that the defendant had made at the close of the plaintiff s case. Ellig, 237 Ill. App. 3d at 403. While the defendant waived the argument by omitting it from the post-trial motion, the court s reasoning suggested that it would have been preserved for appeal had it been included in the post-trial motion. Id. at 404. But, in a bench trial, a different waiver rule would have applied. In a bench trial, presenting defense evidence forfeits appellate review of the denial of the directed verdict and counsel cannot revive the argument in a post-trial motion. Motion in non-jury case to find for defendant at close of plaintiff s evidence. In all cases tried without a jury, defendant may, at the close of plaintiff s case, move for a finding or judgment in his or her favor. In ruling on the motion the court shall weigh the evidence, considering the credibility of the witnesses and the weight and quality of the evidence. If the ruling on the motion is favorable to the defendant, a judgment dismissing the action shall be entered. If the ruling on the motion is adverse to the defendant, the defendant may proceed to adduce evidence in support of his or her defense, in which event the motion is waived. 735 ILCS 5/ (emphasis added); see also Pancoe v. Singh, 376 Ill. App. 3d 900, 909 (1st Dist. 2007). As one court has described it, this statutory requirement is clear, unambiguous, and contains no exceptions. Fear v. Smith, 184 Ill. App. 3d 51, 55 (5th Dist. 1989). As such, a defense attorney in a bench trial must realistically assess the merit of the directed-verdict motion, as well as the potential hazard of putting on a case in which a witness might unexpectedly supply the evidence claimed to be missing from the plaintiff s case-in-chief. Conclusion Being mindful of potential errors during trial makes an attorney more thorough, underscoring rulings that might not otherwise seem significant, and prompting a responsible attorney to treat those events as significant enough to call for a new trial. Addressing such things during trial is far more responsible than treating them merely as insurance for an appeal hoping for them, even in the event of an adverse verdict. While an appealable issue is a nice thing to have, it is far better to avoid the adverse verdict in the first place. In some cases, a heightened sensitivity to potential trial errors can help to achieve that outcome. About the Author Scott L. Howie is a partner at Pretzel & Stouffer, Chartered, in Chicago, specializing in posttrial and appellate practice in the state and federal courts. He received his undergraduate degree from Northwestern University in 1989 and his law degree from Chicago- Kent College of Law in Mr. Howie is a member and past director of the Illinois Appellate Lawyers Association, where he cochairs the Moot Court Committee. About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at Page 4 of 5

5 Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 24, Number Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 588, Rochester, IL , , , Page 5 of 5