2017 All-Ohio Legal Forum. Video Replay Preserving the Record for Appeal

Transcription

1 2017 All-Ohio Legal Forum Video Replay Preserving the Record for Appeal 1.0 General CLE Hour August 23 August 25, 2017 Cleveland

2 Speaker Biographies Derek E. Diaz OSBA Certified Specialist in Appellate Law Hahn Loeser + Parks LLP Cleveland, Ohio Mr. Diaz received his BA from John Carroll University and his JD from The Ohio State University Michael E. Moritz College of Law. His professional memberships include the American Bar Association, American Land Title Association (Best Practices Committee; State Advocacy Committee), Cleveland Law Library Association (Board of Directors), Federal Bar Association Northern District of Ohio Chapter (Board of Directors; Chair, CLE Committee), and the Real Estate Services Providers Council Inc. (Program and Education Committee). Mr. Diaz is a partner of his firm and co-chair of the Appeals and Critical Motions Group. He is an OSBA Board Certified Specialist in Appellate Law. Mr. Diaz focuses his practice on appeals, class actions, complex litigation, and bankruptcy disputes. He is one of the founders of the blog The Class-Action and Compliance Sentinel ( which keeps real estate professionals apprised of new developments regarding class actions and compliance matters in their industry. Mr. Dias is also the found member of the firm s Real Estate Industry Services Group. For additional information, please visit

3 Derek E. Diaz Hahn Loeser + Parks LLP Cleveland, Ohio Preserving the Record for Appeal Table of Contents I. Timely Objections... 1 II. Entry into the Record... 2 A. Common Ways in Which Error Is Not Preserved Magistrate Rulings Items Marked for Identification at Trial but Not Admitted Summary-Judgment Motions Rule 50 Motions Motions to Dismiss Jury Instructions Legal Issues That Might Be Subject to Reversal Motions in Limine Inconsistent Jury Interrogatories Final Pretrial Orders B. Plain-Error Review III. Differences Between Ohio and Federal Law... 7 A. Execution of judgment B. Stay of execution C. Pre- and Post-Judgment Interest D. Effect of Attorney Fee Motion PowerPoint Presentation... 9 Preserving the Record for Appeal i

4 ii Preserving the Record for Appeal

5 Derek E. Diaz Hahn Loeser + Parks LLP Cleveland, Ohio Preserving the Record for Appeal For any litigator, the building blocks of an appeal are laid at trial. Preserving error involves two steps: a timely objection and entry into the record. The failure to do either is often fatal to an appeal. As a general rule, trial counsel should err on the side of preserving all possible grounds for appeal. But that esoteric strategy quickly gives way to two unavoidable realities: the necessity to pick and focus on only one s strongest arguments and the risk of angering a judge who may not take kindly to repeated and, in the judge s mind, unnecessary objections. So, preserving error, like any other aspect of trial practice, requires the exercise of sound judgment. I. Timely Objections Without a timely objection, an appellate court will likely not consider the matter, unless it rises to the nearly unattainable level of plain error. In this context, notions of waiver and forfeiture are often mistakenly conflated. For example, some courts hold that the failure to object at trial results in a waiver on appeal. But normally that sort of oversight is termed a forfeiture, not waiver. See, e.g., United States v. Olano, 507 U.S. 725, 733 (1993) ( Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. ). Regardless of the nomenclature, in Ohio, the fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court s attention, and hence avoided or otherwise corrected. Miracle v. Allen, 9th Dist. No. 05CA8843, 2006-Ohio-5063, 6. Requiring that an objection be made in the lower court reflects universal concerns for judicial efficiency and fairness. For example, a trial judge, if apprised of a defect, might correct the error and avoid the need for appeal. Also, if the opposing party were made aware of an objection and could easily overcome it, that party should have the opportunity to do so. Finally, an unsavory litigant could sandbag the court regarding a critical matter until after losing at trial. Limiting appeals to timely raised objections helps reduce those sorts of problems. Preserving the Record for Appeal 1

6 Rule 46 of the Federal Rules of Civil Procedure speaks to the extent to which objections must be raised. It provides: 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 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. Long ago, attorneys had to formally take exception to adverse rulings. This rule does away with that archaic practice by sensibly presuming that parties disagree with rulings that go against them. Even though you do not have to take formal exception to an adverse ruling, you must still articulate the grounds for the request or objection. Id. Thus, courts often hold that issues averted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999). II. Entry into the Record For a reviewing court, if the points you want to make do not appear in the record, they do not exist. Several situations lend themselves to omitting parties objections. Those include sidebar conferences, telephone hearings, and unrecorded chambers meetings. If you cannot arrange to have a court reporter at those events, then you must verbalize the pertinent rulings into the record at the next available opportunity. Also, be aware that not all courts transcribe opening statements and closing arguments. You may have to make special arrangements to have those recorded. Also, if the court excludes evidence that you wanted to present, you must normally make an offer of proof, or proffer. Under Rule 103 of the Federal Rules of Evidence, a party must inform[] the court of the substance of excluded evidence by an offer of proof, unless the substance was apparent from the context. The Ohio version of that rule is substantively similar, except that an offer of proof is also unnecessary if evidence is excluded during cross examination. Evid.R. 103(A)(2). An offer of proof is a presentation of evidence for the record (but outside the jury s presence) usually made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge s ruling. BLACK S LAW DICTIONARY 1190 (9th ed. 2011). It consists of three parts: (1) the evidence itself, (2) an explanation of the purpose for which it is offered (its relevance), and (3) an argument supporting admissibility. Id. A proffer is inadequate if there is nothing in the offer that would apprise the district court was anything but cumulative. Porter-Cooper v. Dalkon Shield Claimants Trust, 49 F.3d 1285, 1287 (8th Cir. 1995). [T]he offer must express precisely the substance of the excluded evidence, which counsel accomplishes by stating with specificity what he or she anticipates will be the witness testimony or by putting the witness on the stand. Id. 2 Preserving the Record for Appeal

7 Merely telling the court the contents of the proposed testimony is not an offer of proof. Rather, the proponent must explain what it expects to show and the grounds for which the party believes the evidence to be admissible. A. Common Ways in Which Error Is Not Preserved 1. Magistrate Rulings. The failure to object to magistrate rulings is an especially perilous ill that trips up even experienced litigators. For rulings on non-dispositive matters, the applicable rule expressly states that [a] party may not assign as error a defect in the order not timely objected to. Fed. R. Civ. P. 72(a). The same is true of findings and recommendations on dispositive motions. See, e.g., Banco del Atlantico, S.A. v. Woods Indus., Inc., 519 F.3d 350, 353 (7th Cir. 2008) ( [A] failure to file objections [to a magistrate order] waives the right to appeal the issues. ). Objecting to magistrate rulings also raises prickly issues for litigants. Judges typically loathe having to review an issue they hoped a magistrate would resolve. Some jurists seem to go out of their way to affirm magistrate rulings, if for no other reason than to deter future objectors. So even though your objection will nearly always fail, you must raise it (on every ground you deem relevant) to have any chance of arguing the matter on appeal. 2. Items Marked for Identification at Trial but Not Admitted. At trial, many exhibits are marked for possible use and even offered into evidence, but never admitted. Those sorts of evidentiary holes can be hard to identify during the din of trial, but they can easily derail even the best appellate arguments. Consider tasking one member of your trial team with keeping track of marked, offered, and admitted exhibits. 3. Summary-Judgment Motions. One common misperception is that parties need not renew arguments they lost in a summary-judgment ruling. But the safer practice is to perfect them by including them a motion for a judgment as a matter of law at the close of evidence. E.g., E. Mountain Platform Tennis, Inc. v. The Sherwin-Williams Co., Inc., 40 F.3d 492, 497 (1st Cir. 1994) ( The denial of a motion for summary judgment does not merge into the final judgment. Such a denial, to be preserved for review of a legal conclusion subsumed in the ruling, must be perfected by making a motion for judgment as a matter of law at the close of the evidence. The denial of this latter motion does merge into the judgment, and all rulings of law subsumed within it are subject to review on appeal from the judgment. ). Denial of summary judgment is a prediction that the evidence will be sufficient to support a verdict in favor of the nonmovant. Once the trial has taken place, the focus should be on the evidence actually admitted and not on the earlier summary-judgment record. Preserving the Record for Appeal 3

8 The denial of a summary judgment motion means only that the court believes that there is at least one genuine issue of fact that must go to trial. The ruling does not constitute the final disposition of factual questions, which turn on the evidence actually introduced at trial. 4. Rule 50 Motions. For motions for judgment as a matter of law, a good rule of thumb is to make them at three critical times: at the close of evidence for the opposing party, at the close of all evidence, and after the verdict. Be over-inclusive with them because they will limit the legal matters you can raise on appeal. See, e.g., Conseco Fin. Serv. Corp. v. N. Am. Mortg. Co., 381 F.3d 811, 821 (8th Cir. 2004) ( The grounds for the renewed motion under Rule 50(b) are limited to those asserted in the earlier Rule 50(a) motion. In other words, a movant cannot use a Rule 50(b) motion as a vehicle to introduce a legal theory not distinctly articulated in its close-ofevidence motion for a directed verdict. ); Freund v. Nycomed Amersham, 347 F.3d 752, 761 (9th Cir. 2003) ( A party cannot raise arguments in its post-trial motion for judgment as a matter of law under Rule 50(b) that it did not raise in its pre-verdict Rule 50(a) motion. ). Also, be aware whether you intend to challenge the sufficiency of the evidence, its weight, or both. In civil cases, as in criminal cases, the sufficiency of the evidence is quantitatively and qualitatively different from the weight of the evidence. Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-Ohio-2179, 972 N.E.2d 517, paragraph two of the syllabus. Weight challenges need not be preceded by a Rule 50 motion. See id. at paragraph one of the syllabus ( When the evidence to be considered is in the court s record, a party need not have moved for directed verdict or filed a motion for a new trial or a motion for judgment notwithstanding the verdict to obtain appellate review of the weight of the evidence. ). The opposite is true of sufficiency attacks. See, e.g., Belk, Inc. v. Meyer Corp., 679 F.3d 146, 155 (4th Cir. 2012) (noting that party s failure to comply with Rule 50(b) forecloses its challenge to the sufficiency of the evidence ). 5. Motions to Dismiss. Certain defenses must be raised in a Rule 12 motion before filing an answer, or else they are waived: (i) lack of personal jurisdiction; (ii) improper venue; (iii) insufficient process; and (iv) insufficient service of process. See Fed. R. Civ. P. 12(h)(1). 4 Preserving the Record for Appeal

9 6. Jury Instructions. Civil Rule 51, which applies to jury instructions, is fairly unforgiving about omitted objections. The rule provides: (d) Assigning Error; Plain Error. (1) Assigning Error. A party may assign as error: (A) an error in an instruction actually given, if that party properly objected; or (B) a failure to give an instruction, if that party properly requested it and unless the court rejected the request in a definitive ruling on the record also properly objected. (2) Plain Error. A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights. Fed. R. Civ. P. 51(d). Courts rigorously adhere to those waiver principles. See, e.g., Christiansen v. Inman, 98 Fed. Appx. 521, (7th Cir. 2004) ( The parties to a civil case... must alert the district court to perceived errors in the jury instructions, stating distinctly the matter objected to and the grounds of the objection, prior to instructing the jury, so the judge can fix the problem before the case goes to the jury. ). Along those lines, courts will find that a party did not preserve an objection to the failure to give a jury instruction where the party did not seek one itself. See, e.g., Thompson v. Mem l Hosp. of Carbondale, 625 F.3d 394, (7th Cir. 2010). So mere omission of a requested instruction from the final charge does not constitute a definitive ruling excusing the failure to object for purposes of appeal. Collins v. Alco Parking Corp., 448 F.3d 652, 656 (3d Cir. 2006). If a party fails to comply with Civil Rule 50, appellate review is limited to whether the records reflects an absolute dearth of evidentiary support for the jury s verdict. Zachar v. Lee, 363 F.3d 70, 74 (1st Cir. 2004). 7. Legal Issues That Might Be Subject to Reversal. Often, an important legal issue is subject to controlling legal authority that your judge cannot ignore. Even so, if that same issue appears in other pending cases, make sure to raise the matter at the trial-court level. If any of those cases leads to a change in law that favors your case, you can take advantage of it but only if you have already made it part of the record. Preserving the Record for Appeal 5

10 8. Motions in Limine. 6 Preserving the Record for Appeal Do not assume that errors in rulings on motions in limine are preserved. In Ohio state courts, renewed objections at trial are necessary. The reasoning is that orders on motions in limine reflect only the court s anticipated view of the matter, which is subject to change. See, e.g., Gable v. Gates Mills, 103 Ohio St. 3d 449, 2004-Ohio-5719, 816 N.E.2d 1049, 34 ( Ohio law is clear, however, that a ruling on a motion in limine may not be appealed and that objections to the introduction of testimony or statements of counsel must be made during the trial to preserve evidentiary rulings for appellate review. ); Arndt v. P&M, Ltd., 11th Dist. No P-88, 2011-Ohio-649, 6 ( An appellate court need not review the propriety of an order [on a motion in limine] unless the claimed error is preserved by an objection, proffer, or ruling on the record when the issue is actually reached and the context developed at trial. ). Federal courts tend to take a more pragmatic approach to the issue. See, e.g., Fed. Ins. Co. v. HPSC, Inc., 480 F.3d 26, 33 (1st Cir. 2007) ( Motions in limine preserve evidentiary issues for appeal if the district court made a final and unconditional ruling on the motion; no further steps, such as filing a Rule 59(b) motion, are necessary. ). 9. Inconsistent Jury Interrogatories. If jury interrogatories are inconsistent, the conflicts must be identified and resolved before the jury is excused. See, e.g., Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006) ( It is well established that a party waives its objection to any inconsistency in a jury verdict if it fails to object to the verdict prior to the excusing of the jury. ); Zachar v. Lee, 363 F.3d 70, 75 (1st Cir. 2004) ( [O]bjections to the inconsistency of verdicts must be made after the verdict is read and before the jury is discharged. ). 10. Final Pretrial Orders. Once a final pre-trial order is entered under Civil Rule 16(e), it controls the scope and course of the trial. Schadler Anthem Life Ins. Co., 147 F.3d 388, 393 n.1 (5th Cir. 1998). If a claim or issue is omitted from the order, it is waived. Id. The order supersedes all pleadings and governs the issues and evidence to be presented at trial. Mid-Continent Cas. Co. v. Eland Energy, Inc., 795 F. Supp. 2d 493, 538 (N.D. Tex. 2011). B. Plain-Error Review. If error has not been properly preserved, the tactic of last resort is invoke plainerror review. Not only is the standard incredibly high, but it also puts the litigant in a logical bind: having to argue the significance of an error that no one bothered to raise at trial. That invites the dreaded inference that the error must not have been that significant in the first place.

11 Plain-error review generally asks the appellate court to correct a defect that, if left in place, would threaten the integrity of the judicial system. See, e.g., Kimble Mixer Co. v. St. Vincent, 5th Dist. No AP , 2006-Ohio-2258, 89 ( Implementation of the plain error doctrine is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of injustice. ). In Ohio, the doctrine can be applied to civil cases only if the alleged error would have a material adverse affect on the character and public confidence in judicial proceedings. Id. Federal standards are similarly exacting. See, e.g., Wilson v. Waggener, 837 F.2d 220, 222 (5th Cir. 1988) ( The plain error remedy is to be used only in extreme cases where a miscarriage of justice would otherwise occur. ). III. Differences Between Ohio and Federal Law A. Execution of judgment. Under state law, if the judgment creditor executes successfully executes while case is on appeal, the appeal might become moot. So, you lose. Federal law is not so oppressive, but might be in a diversity case. B. Stay of execution. Under Federal Rule 62, there is an automatic 14-day stay of execution on judgment. Under Ohio Rule 62, all stays are discretionary and not automatic. C. Pre- and Post-Judgment Interest. A federal court sitting in diversity applies state law for pre-judgment interest, but federal law as to post-judgment interest. Difference of 3 percent versus 0.25 percent. D. Effect of Attorney Fee Motion. Under Federal Civil Rule 58, you can ask the court to delay finality pending ruling on a motion to tax costs or award attorney fees. Ohio Civil Rule 58 does not give you that option. Preserving the Record for Appeal 7

12 8 Preserving the Record for Appeal

13 Derek E. Diaz May 4, 2017 Columbus, Ohio PRESERVING ERROR [T]he fundamental rule is that an appellate court will not consider any error which could have been brought to the trial court s attention, and hence avoided or otherwise corrected. Miracle v. Allen, 9th Dist. No. 05CA8843, 2006-Ohio-5063, 6. Preserving the Record for Appeal 9

14 PRESERVING ERROR... a near-religious fervor... Nat l Ass n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995) PRESERVING ERROR Waiver (intentional) vs. Forfeiture (failure to assert) 10 Preserving the Record for Appeal

15 PRESERVING ERROR PRESERVING ERROR Timely objection Entry into record Preserving the Record for Appeal 11

16 TIMELY OBJECTIONS Might correct problem Opponent can respond Prevents sandbagging TIMELY OBJECTIONS Federal Civil Rule 46: Sufficiency of preservation subjective can Tellbecourt what you want State grounds for objection 12 Preserving the Record for Appeal

17 ENTRY INTO RECORD Verbalize Chambers Meetings Telephone Conferences Sidebar Conferences ENTRY INTO RECORD Audio Playbacks Preserving the Record for Appeal 13

18 ENTRY INTO RECORD Statement of Record Agreed Statement of Record Correction of Record OHIO R. APP. 9 FED. R. APP. 10 YOU NEED The evidence itself To explain its relevance To explain its admissibility PROFFER FED. R. EVID Preserving the Record for Appeal

19 PRESERVING THE RECORD Top Ten Places for Unpreserved Error (1) Magistrate rulings Preserving the Record for Appeal 15

20 Top Ten Places for Unpreserved Error (1) Magistrate rulings (2) Items not admitted Top Ten Places for Unpreserved Error Constitutional Issues (1) Magistrate rulings (2) Items not admitted (3) Summary-judgment motions 16 Preserving the Record for Appeal

21 Top Ten Places for Unpreserved Error (1) Magistrate rulings (2) Items not admitted (3) Summary-judgment motions (4) Final pre-trial orders Top Ten Places for Unpreserved Error (1) Magistrate rulings (2) Items not admitted (3) Summary-judgment motions (4) Final pre-trial orders (5) Motions to dismiss Preserving the Record for Appeal 17

22 Based on: Miller v. Wikel Mfg. Co, 46 Ohio St. 3d 76, 79 (1989); Hastings v. (6) J.E. Jury instructions Scott Corp, 4th Dist. No. 2003CA 32, 2004-Ohio-1821, 30. Top Ten Places for Unpreserved Error Top Ten Places for Unpreserved Error (6) Jury instructions (7) Emerging legal issues 18 Preserving the Record for Appeal

23 Plaintiffs Motion for Judicial Notice. Motions in Limine Top Ten Places for Unpreserved Error Explicit + Definitive = Final This request is denied without prejudice. Conditional/qualified = Not Final (6) Jury instructions (7) Emerging legal issues (8) Motions in limine Top Ten Places for Unpreserved Error (6) Jury instructions (7) Emerging legal issues (8) Motions in limine (9) Inconsistent jury interrogatories Preserving the Record for Appeal 19

24 Top Ten Places for Unpreserved Error (6) Jury instructions (7) Emerging legal issues (8) Motions in limine (9) Inconsistent jury interrogatories (10) Rule 50 motions When to Make Rule 50 Motions (1) Close of evidence for your adversary (2) Close of all evidence (3) After the verdict 20 Preserving the Record for Appeal

25 Improper Jury Arguments * Golden Rule * Local Bias * Race, religion, political affiliation, or corporate status * Appeal to religious authority ADMINISTRATIVE APPEALS Administrative law judge Agency director Court of appeals Preserving the Record for Appeal 21

26 PLAIN-ERROR REVIEW... this burden is extraordinary and nearly insurmountable... Somerlott v. Cherokee Nation Distribs., Inc., 686 F.3d 1144, 1151 (10th Cir. 2012) PLAIN-ERROR REVIEW 22 Preserving the Record for Appeal

27 OHIO LAW V. FEDERAL LAW Execution of Judgment Stay of Execution Pre- & Post-Judgment Interest Effect of Attorney Fee Motion Preserving the Record for Appeal 23