Creating Your Record on Appeal
An appellate court will not consider an issue that was not properly preserved in the trial court. How do you do that?
Here's a basic four-point checklist to follow:o You must present the issue to the trial court;
o You must be specific - meaning, the specific legal argument or grounds to be argued on appeal must be part of that presentation to the trial court;
o You must make a timely, contemporaneous objection at the time of the alleged error; and
o You must obtain a definitive ruling from the trial court on the objection.
Burden is on you to create the record on appealIf you fail to properly preserve the issue on the record, the issue is considered waived, except for those limited unpreserved issues which constitute fundamental error
It is important to remember that a trial court's decision comes to the appellate court presumed correct. So, the burden is on you, as the appellant, to demonstrate that the trial court erred. That means that you must provide the appellate court a record sufficient to evaluate the evidence and issues presented to determine if the trial court erred. In short, you need a transcript of the proceedings. Without a transcript, appellate review is limited to errors that are clear on the face of the order. A remedy exists in the appellate rules if a transcript of the proceedings is unavailable. However, it is fraught with difficulties and may still be insufficient to allow proper appellate review.
Best approachThe best approach for a trial lawyer is to be proactive and preventative. Know your issues well beforehand. Be prepared to object with specificity. Perhaps mostly important, have a court reporter present at all proceedings.
Your appeal begins at the trial level and not after the notice of appeal has been filed. Enlisting an appellate lawyer early on in the case or having him attend trial, allows the appellate lawyer to ensure the record looks good for the appellate court while you, the trial lawyer, make the case look good for the jury.