IF IT ISN T IN THE RECORD, IT NEVER HAPPENED: PRESERVING ERRORS, EVIDENCE, AND ARGUMENT FOR APPEAL

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1 IF IT ISN T IN THE RECORD, IT NEVER HAPPENED: PRESERVING ERRORS, EVIDENCE, AND ARGUMENT FOR APPEAL Michael C. Subit Frank Freed Subit & Thomas 705 Second Avenue, Suite 1200 Seattle, WA P: F: MSubit@frankfreed.com Web: www://frankfreed.com We all make mistakes. Appellate lawyers spend their careers dealing with error. If you represent the appellant, then your job is to convincing the appellate court that a serious error has been made, one adversely affecting your client s rights. If you represent the appellee, then your job is to argue no errors occurred, but if they did, they were harmless. Even better, the party who won below would like to be able to argue that his or her opponent did not preserve whatever errors there might have been. If that is the case, the party claiming error has a particularly tough road to reversal. If you are that party, the last thing you want to be addressing is a claim that you or your predecessor failed to preserve the asserted error, or even worse, invited it. Likewise, no appellate lawyer likes to hear the court say something to the effect of: I don t see where you made that argument below, counsel. General Rules for Preserving Error There are no federal appellate rules that deal directly with preserving error. Fed. R. App. P. 3(a)(1)(A) requires that an appeal in civil cases be filed within 30 days after the judgment or order appealed from is entered. Fed. R. App. P. 4(a)(3). Section 7 of Rule 3 defines when an order is entered. If the order is not a judgment or other entry 1

2 that Fed. R. Civ. P. 58(a)(1) requires to be entered in a separate document, the appeal times runs from when the order is entered in the civil docket. Fed. R. App. P. 3(a)(7)(A)(i). If the appeal is from an order required to be in a separate document, the time to appeal runs from when the separate document is entered. If the court fails to sign a separate document, then the time to appeal starts 150 days after the entry of the nonseparate judgment or order on the civil docket sheet. Fed. R. App. P. 3(a)(7)(B). Any practiced trial lawyer knows that much about the law of evidence is not contained in the[] written rules. Fusco v. GM Corp., 11 F.3d 259, 262 (1 st Cir. 1993). Federal Rules of Evidence 103 provides a general framework regarding the preservation of error. A reviewing court may not generally review an allegedly erroneous ruling unless: In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or In case the ruling is one excluding evidence, 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)(1)-(2). If a party unsuccessfully objects to evidence on one or more grounds, this will not preserve for appeal a successful objection that could have been made on some other ground, but was not. McKnight ex rel Ludwig v. Johnson, 36 F.3d 1396, 1407 (8 th Cir. 1994). On the other hand, if a party successfully excludes or admits evidence based on a theory that the appellate court later rejects, the prevailing party should be able to assert on appeal alternative grounds to sustain the trial court s ruling under the principle that the appellate court may affirm on any ground supported by the record. Frederick v. Marquette Nat. Bank, 911 F.2d 1, 2 (7 th Cir. 1990). It makes no 2

3 sense to require a party to give the lower court secondary or tertiary bases for an evidentiary decision the district court has already made in its favor. A ruling on the admissibility of evidence may come at trial or beforehand, such as on a motion in limine. If an appropriate objection or offer is made and the court makes a firm ruling, a party does not need to reiterate it: Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim or error for appeal. Fed. R. Evid. 103(a). The key to application of this rule is whether the court made a definitive ruling on the evidence. At a minimum there has to be an utterance from the court that constitutes a ruling. Sometimes a judge will ask counsel not to proceed with a line of questioning while the court considers whether to allow it. The proponent of the evidence must subsequently reinitiate the line of questioning or ask the court for a ruling to preserve an objection for appeal. Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509 (9th Cir. 1974). If the court s initial ruling is merely tentative or qualified, the party will have to reassert its objection or offer at trial to preserve it for appeal. For example, if the court has denied a motion in limine to exclude evidence, the party objecting to that evidence must ordinarily re-assert its objection at trial to preserve it for appeal. Fusco, 11 F.3d at 262. This situation will arise frequently, as many courts are reluctant to exclude evidence before trial. On the other hand, where a court has granted a motion to exclude evidence before trial, the proponent of that evidence ordinarily does not have to raise the issue again at trial as long as the appropriate offer of proof was made. Id. at 263. There may, 3

4 however, be some cases where changed circumstances by the time of trial will make it unreasonable for a party to rely on an in limine ruling. Id. at 663 n.3. A party s failure to make an objection to testimony or evidence will not generally be cured by a motion to strike after the fact. Courts won t let a party listen through testimony without any objection in the hope that something good comes of it, and if it doesn t, move to strike after-the fact. See McKnight, 36 F.3d at On the other hand, a motion to strike will be effective where the inadmissibility of the evidence or testimony was not apparent from the get-go. Id.. The general rule is that an objection must be made at the earliest possible point that the need for an objection became apparent or else the party waives the objection. Id. A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or objects to, along with the grounds for the request or the objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. Fed. R. Civ. P. 46. The degree of precision with which counsel is required to argue during the heat of trial to preserve an issue for appeal must be judged, among other things, in accordance with the leeway with which the court has allowed the lawyer to make his or her argument. Beech Aircraft v. Rainey, 488 U.S. 153, n.22 (1988). While the case law talks about the waiver of objections, waiver requires the intentional relinquishment of known rights. U.S v. Olano, 507 U.S. 725, 732 (1993). The operative concept is really forfeiture. Id. In the context of evidentiary objections, it is not true that the law abhors a forfeiture. Cf. Osbourn v. Prudential Ins. Co., of Am., 453 F.3d 1077, 1079 (8 th Cir. 2006). Most of the time the rule is You snooze... you lose. 4

5 Errors Plain, Harmless, and Invited The Rules of Evidence provide a narrow escape valve for forfeited errors: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. Fed. R. Evid. 103(d). Cf. Fed. R. Civ. P. 51(d)(2). The U.S. Supreme Court has unhelpfully defined plain error as clear or obvious error. Olano, 507 U.S. at 732. Plain error is one of those I know it when I see it legal concepts. The mere fact that an error affects substantial rights will not make it plain. An error that does not affect a substantial right of the party is not a reversible error even if it has been preserved since by definition such an error was harmless. Johnson v. William Ellis & Sons. Iron Works, Inc., 609 F.2d 820, 823 (5 th Cir. 1980). Harmless errors must be disregarded and so are not worth preserving in the first place: Unless justice requires otherwise, no error in admitting or excluding evidence or any other error by the court or a party is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise, disturbing a judgment or order. At every stage of the proceeding the court must disregard all errors and defects that do not affect any party s substantial rights. Fed. R. Civ. P. 61. The best test for plain error may be as follows: If the appellate court hears the evidence admitted or excluded without objection and thinks Oh, my God! Holy Cow! or something to that effect, you have a case of plain error. If plain error is the last refuge of the desperate, invited error is the Ninth Circle of the Appellate Inferno. Invited error is one that the party claiming error himself caused such as asking the court to give a legally erroneous jury instruction. There is case law holding that invited error cannot be the basis for a reversal on appeal. E.g. U.S. v. Console, 13 F.3d 641, 660 (3 d Cir. 1990). On the other hand, some courts seem to allow 5

6 for a reversal of an invited error where there has been a miscarriage of justice. U.S. v. Corso, 549 F.3d 921, 929 (3 d Cir. 2008). This is fairly close to the standard for a reversal for plain error. See Olano, 507 U.S While a good argument can be made that an omitted objection is itself an invited error (on the assumption that the lower court would have made the right ruling if the objection had been raised), in practice appellate courts apply an even higher standard for the reversal of an invited error as opposed to merely a plain error. Rules Regarding Waiver of Specific Errors Pleadings Fed. R. Civ. P. 12(h)(1) provides that a party waives any objection to lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process if such defense is not made by an allowed Rule 12 motion or included in a responsive pleading or amendment to a pleading allowed as of right. Only one motion under Rule 12 with respect to these defenses may be made. Fed. R. Civ. P. 12(g)(2). Summary Judgment Record A supporting or opposing affidavit or declaration must be made on personal knowledge, set out such facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in the affidavit or declaration, a sworn or certified copy must be attached or served at the same time. Fed. R. Civ. P. 56(e)(1). A timely motion to strike any nonconforming declaration must be made in order to preserve any objection. Even then, on appeal, the excluded material will be part of the summary judgment record. The party 6

7 whose materials were struck will need to file a separate appeal of the order granting the motion to preserve it for appeal. Jury Trial A party waives a jury trial unless its demand is properly served and filed. Fed. R. Civ. P. 38(d). When a case is removed to federal court, a jury demand must be filed within 14 days of the service of the notice of removal if no demand has been made in the state court action. Fed. R. Civ. P. 81(c)(3)(B). Jury Verdict A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury, unless, before the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict. Fed. R. Civ. P. 49(a)(3). Jury Instructions Before giving instructions to the jury, the court must give the parties the opportunity to object to its proposed instructions. Fed. R. Civ. P. 51(b)(2). A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection. Fed. R. Civ. P. 51(c)(1). On appeal, a party may assign error to a jury instruction given only if the party properly objected. Fed. R. Civ. P. 51(d)(1)(A). A party may assign error to a jury instruction that was not given only if the party properly requested the instruction and unless the court rejected the request in a definitive ruling on the record must also object to the failure to give the instruction. Fed. R. Civ. P. 51(d)(1)(B). A party does not 7

8 have to raise an objection to a jury instruction in the trial court where a solid wall of appellate authority would have made any objection futile. Costa v. Desert Place Inc., 299 F.3d 838, 864 (9 th Cir. 2002) (en banc), aff d, 539 U.S. 90 (2003). Otherwise, a court may consider a plain error in the instructions that has not been preserved as required only if the error affects substantial rights. Fed. R. Civ. P. 51(d)(2). The Rules About Arguments It is a general rule that appellate courts do not pass on arguments not raised below. Singleton v. Wulff, 426 U.S. 106, 120 (1976). This means litigants must first raise an argument in the trial court. Golden Bridge Tech Inc. v. Nokia, Inc., 527 F.3d 1318, 1322 (Fed. Cir. 2008). There are exceptions such as new legislation or an intervening Supreme Court decision. New counsel on appeal doesn t count as a sufficient reason. Id. An appellate court may announce the correct rule of law for a case even if neither party has articulated it as long as the issue to which the rule of law applies is properly before the court. Id. at There is also an exception to avoid injustice. One example of this is where no court will ever have the opportunity to consider a purely legal argument raised for the first time if the lower court judgment is simply affirmed. U.S. v. U.S. Dist. Court for the Southern Dist. of CA, 384 F.3d 1202, 1205 (9 th Cir. 2004). Although the exceptions to the rule against considering new arguments on appeal are narrow, a court will often take a liberal view of whether an argument has been raised below. There is no bright line for deciding whether an argument has been raised in the trial court. Whittaker Corp v. Execuair Corp., 955 F.2d 510, 515 (9 th Cir. 1992). It is enough that the argument be raised sufficiently for the district court to have ruled on it. Id. If a party raises a legal issue in the district court and makes a general argument in 8

9 support of their position, an appellate court will entertain a new subsidiary legal argument for the first time on appeal. Gill v. INS, 420 F.3d 82, 86 (2d Cir. 2005). But a court will not consider an argument made in the trial court solely in support of one cause of action to apply to a different cause of action on appeal. Cummings v. Norton, 393 F.3d 1186, (10 th Cir. 2005) (refusing to consider argument made in trial court on failure to accommodate claim on appellate consideration of wrongful termination claim). However, it is often hard to tell the difference between a separate cause of action and an alternative theory in support of a single cause of action. An appellate court will consider an argument first made in a timely motion for reconsideration but not one first raised after final judgment has been entered. Whittaker, 955 F.2d at 515. Conclusion While it would be great if trial judges got it right all the time, that is not the world in which any of us practices law. In most situations, if a party has failed to preserve an error or an argument in the trial court, for the purposes of appeal the error never happened and the argument does not exist. Preserving error is not difficult, but critical. Failing to do can prove fatal. 9