Preservation of Error for Appeal: The Evidence Slice

The Briefs, a publication of the Orange County Bar Association, November 2012

Over the last year, the Appellate Practice Committee of the Orange County Bar Association has been writing and publishing, for your education and (let’s face it) malpractice protection, a series of articles about the preservation of error for appeal.  Each article has addressed different slices of the litigation pie: pre-trial error, jury selection, and jury instructions/verdict forms.  Here, the focus is upon evidentiary errors.  Still to come are articles on preservation of error in opening and closing arguments and in post-trial proceedings.

If litigation is a pie, the evidence “slice” is the one most likely to cause heartburn for a trial attorney.  “Evidence” encompasses many ingredients.  There are documents in all sorts of forms – legal instruments, business records, medical records, financial records, letters, emails, notes, etc.  There are also transcripts of prior testimony, expert reports, and learned treatises.  There is a wide array of physical evidence, including photographs and videos.  Finally, there is witness testimony – lay and expert, direct, cross, and rebuttal.  A trial attorney must keep a constant watch over all these evidentiary ingredients, ensuring no one item “goes bad” (such as a witness changing his story or authentication of a document being overlooked), avoiding a “boiling over” (such as a client losing his cool on the stand), and, most importantly, maintaining the vision of the overall final product – one in which, hopefully, all flavors will blend together perfectly to create something the judge or jury will swallow with a smile.

Someone once told me that a really good cook is able to make a delicious meal and clean the kitchen at the same time.  That’s because a good meal tastes even better when you know the pots don’t need scrubbing when you are done eating.  Likewise, a good trial attorney, while putting together all those ingredients in the heat of trial, is always thinking about what may happen after the verdict is in – making sure he or she will be ready for any “clean up.”  As an appellate practitioner, I can tell you that the “clean up” is a lot easier if you have planned ahead by properly preserving error.  That’s because, in the absence of proper preservation, what could have been a simple rinse and dry (for example, the trial court erred in admitting obvious hearsay that was highly and unduly prejudicial) turns into a soak-scrub-and-repeat job (or in appellate terms: proving fundamental error).

Some trial attorneys recognize that it is difficult to stay focused on trial while constantly planning the appeal. Because of this, many bring in an appellate practitioner to second chair and handle preservation issues.  For lawyers who opt to juggle all those plates alone, here is a limited list of evidentiary errors that the appellate courts have found were unpreserved for appellate review in the absence of a timely and specific objection:

admission of testimony regarding reports or records containing hearsay, prior testimony in the absence of proof that the witness was unavailable for trial,parole evidence,documentary evidence containing redactions, documents not divulged previously during discovery or on pretrial statements,an expert’s testimony as to a subject area outside of his established expertise, an expert witness’s reference to an outside source to backup his opinion, evidence of similar wrongdoing to show propensity,  and testimony by a non-competent witness suffering from mental retardation and psychiatric problems.

Of course, a complete list of evidentiary issues that must be preserved in order to obtain appellate review would be much longer.

Another evidentiary matter fraught with potential for unpreserved error is the introduction of evidence that goes “off theory,” i.e., evidence that supports a different theory than that pled by the party introducing it.  In such a case, the opposing party may view the evidence as inconsequential to the material elements of the pled action and choose not to object, thinking “no harm no foul.”  But if no objection is made to the evidence, the introducing party may later assert the new theory was tried by implied consent, seek to amend the pleadings to conform to the evidence, and then easily defeat any appeal by showing that no timely objection was raised to the evidence.  As you can see from this example, a desire to “choose your fights wisely” can lead down a dangerous path, where unpreserved error masquerades as harmless until it is too late.

Once a lawyer identifies the multitude of potential evidentiary issues that may arise in a trial, the next step is knowing exactly how to preserve them.  A well-prepared trial lawyer tries to undertake as much issue-spotting in advance and file a motion in limine to be heard before trial even begins.  But is that enough?  And what do you do if an objection or motion in limine is granted against admission of your evidence?  Trial lawyers well know that it can feel awkward to take steps obviously designed to establish a record of a judicial error when you are still conducting a trial before the same judge who you hope will ultimately rule in your favor in the war (if not every battle).

Section 90.104 of the Florida Statutes states that a court may predicate error on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and, when the ruling is one admitting evidence, a “timely” objection or motion to strike appears on the record.  Such an objection must state the “specific” ground if the specific ground was not apparent from the context.  Alternatively, when the ruling is one excluding evidence, the substance of the evidence must have been made known to the court by “offer of proof” or was apparent from the context within which the questions were asked.  Further, this statute states that, if the court has made 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 of error for appeal.

Let’s consider each of those requirements in turn.

What constitutes a “timely” objection may seem obvious.  But this requisite can still trip up a trial lawyer trying to serve a clean and well-presented plate of evidence to a jury.  The rationale of the contemporaneous objection rule is to offer the trial court the opportunity to correct any mistake and to prevent a litigant from allowing an error to go unchallenged so it may later be used for a tactical advantage.  How does that play out in real life?  Take this as an example: In a product liability case, defense counsel cross-examined the plaintiff about a cocaine habit that he suffered from 14 years prior to the trial. When presented with the issue, the Fifth District Court of Appeal found the questioning clearly amounted to an improper attack on the plaintiff’s character, but also noted no contemporaneous objection was made by the plaintiff’s counsel, and therefore the issue was not preserved for review other than under the difficult fundamental error standard, which it did not meet.  In so ruling, the Court noted that plaintiff’s counsel had made a strategic decision not to object at the time of the offensive testimony, in order not to draw attention to it, instead moving for mistrial at a later stage.  But the Court ultimately suggested that such a “judgment play” proved fatal to any hope of a reversal on that point.

Something that clients (and some attorneys) struggle to understand in an appeal is the difference between judicial error, which may be curable on direct appeal, and attorney error.  A client is often hard-pressed to grasp the reasoning behind the prerequisite of preservation of error, in the face of knowledge that “unfair” or “false” testimony has been presented against him or her.  You certainly do not want to be in the position of explaining that the appellate court will not “fix it” because you failed to object to it.  Take for instance the case where a witness changed his testimony at trial from testimony given at a prior deposition.  The Third District Court of Appeal held that the questioning attorney failed to preserve for review the issue of false testimony by not raising a timely objection or an appropriate in-trial motion when confronted with such changed testimony, deciding instead to impeach the witness and emphasize to the jury the inconsistent statements.  The court found, even if the witness knowingly gave and used false testimony, the opposing attorney made “a tactical decision to take her chances with the jury” and “gambled and lost.”

It must be kept in mind that not only a “timely” objection should be made, but also a “specific” one.  An appellate court will consider the grounds to the admissibility of evidence that were specifically made at trial and cannot consider those objections to admissibility of evidence which are raised for the first time on appeal.  Thus, where a party objects on one ground that proves improper and then, on appeal, argues that the evidence should have been excluded on another ground, the appellate court can and will reject the argument for lack of preservation.  For example, in one case the court concluded, on the question of the admissibility of statements allegedly made by a corporate party’s employee relating to preventive measures attempted by the party, that the matter was not properly preserved for review because the “bare hearsay objection made below did not elucidate the double hearsay/scope of employment argument … now offer[ed] as a basis to exclude the evidence.”  Of course, the need for a “specific” objection requires a significant amount of thinking on your feet, especially when you sense that testimony is objectionable but are struggling to place your finger on an exact reason.  Perhaps the best practices are to think through all potential testimony and prepare a list of potential objections in advance and to bring another trial lawyer, or better yet an appellate practitioner, as second chair with whom you can quickly consult regarding potential grounds after saying that (timely) word “objection.”

Another best practice that many attorneys utilize is the pre-trial motion in limine.  However, counsel are cautioned to be certain that a “definitive ruling” on such a motion is on the record, before relying on it as preservation of an error.  Here again, counsel can run into problems when trying to avoid “stirring the pot” too much by not renewing an objection to evidence that, counsel believes, the court already ruled in pre-trial motions would be admissible.  An illustration of this is where a party files a motion in limine and both sides present argument thereon, but the court reserves its ruling. If the evidence is later admitted without a renewed objection, the party effectively waives the objection, despite the presence in the record of a written motion and argument thereon.  In such cases, the court cannot review any claimed error resulting from admission of that testimony.  Perhaps a less obvious example is where the court may rule in part on a motion in limine, laying out some general guidelines, but does not hold that any specific testimony may or may not be introduced.  Thus, where a judge simply stated that he was not willing to rule on anticipated evidence out of context, deciding to allow testimony concerning a party’s prior injuries but not making an unequivocal ruling on a motion in limine regarding other matters related to an earlier accident, the court on appeal held that it was incumbent upon the opposing party “to object on a question-by-question basis in order to preserve the matter for appellate review.”

Finally, when a court does rule against you on an evidentiary issue, it is incumbent upon you to ensure that a proper proffer of the evidence is made.  If a party largely fails to identify, through a proffer, any specific evidence that was wrongfully excluded due to the trial court’s ruling, such makes it impossible for an appellate court to evaluate these claims.  Rule 1.450 of the Florida Rules of Civil Procedure addresses making a record of excluded evidence.  It states: “In an action tried by a jury if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what the attorney expects to prove by the answer of the witness. The court may require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed except that the court upon request shall take and report the evidence in full unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.”  Even when the trial court has granted a motion in limine, ruling that certain evidence should be excluded, an offer of proof may still necessary if the claimed evidentiary error is to be preserved for appellate review. This can be done without violating the order in limine by offering the excluded evidence at trial outside the presence of the jury and asking that excluded documents be marked for identification with a number and described fully in the record.  Of course, if you intend to rely on a proffer made at the time that a pre-trial motion in limine is heard, you need to be certain a court reporter is present.  Otherwise, the appellate court will not have the benefit of the proffer, upon which to conclude that the evidence was improperly excluded.

The foregoing is intended to present a recipe for preserving evidentiary errors and to avoid getting burned on appeal.  In closing, if anyone should object to my overindulgence in cooking analogies, all I can say is that I strongly suspect that I am a much better appellate practitioner than a cook.