In the heat of trial, the preservation of issues for appeal frequently takes a backseat to the day-to-day exigencies of preparing witnesses, examination outlines, and motions in limine. All too often, attorneys resort to tracking perceived errors and trusting that an incorrect decision will be rectified on appeal. And all too often they are met with the harsh rule of waiver on the steps to the Court of Appeals. Stung by waiver once, trial counsel may overlearn from their mistakes. Sacrificing rhythm, resources and their rapport with the trial judge, they may press objections or motions they know the court will reject, even after the issue has already been adequately preserved. This article serves as a guide to attorneys practicing in federal court who need quick answers to the what, how, and when questions of preservation.
The general rule is that appellate courts consider only evidence, objections and legal arguments that have been presented in the first instance to the trial court.1 There are many footnotes to this rule, however, the most important of which deal with timingobjections or motions could still lead to waiver if not made at the right juncture. Adding to the complexity are judicial discretion and varying procedures in bench and jury trials.
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