You probably wouldn’t take an issue to trial unless you believe you have a solid chance at winning the case – but that doesn’t mean that you should forget about the possibility that things won’t go your way. If so, you may ultimately want to file an appeal.
To raise an issue on appeal, you have to “preserve a claim of error,” or make a record of the objections raised on questions of law, questions of fact and other matters that fall within the court’s discretion. Here are three times this is commonly done:
During voir dire
“Voir dire” is the technical term for the process used to select a fair and impartial jury. Many attorneys believe that a case may be won or lost during jury selection, so there tends to be a lot of focus from both sides on getting jurors seated who might inherently favor their position. Challenging the basis for the exclusion of certain jurors can be essential for an effective appeal.
During pretrial motions
Many pretrial motions are centered on what evidence should be put before the court for consideration. Motions in limine are designed to keep evidence that’s irrelevant, illegally obtained or unduly prejudicial for or against one side out of the trial.
During jury instructions
These instructions guide the jurors on how to apply the law to the facts of the case, but they can be significant sources of conflict upon appeal. Trial judges can sometimes misstate the law, omit an important instruction or simply contradict themselves. The instructions can also sometimes be prejudicial to one side.
It takes skilled legal guidance to understand how to effectively preserve claims of error for appeal. For that reason, you may want to seek appellate guidance even before your claim goes to court.
