The Importance of Preservation to Winning a Civil Appeal

Theresa Lynn Sidebotham, Esq.

Jessica Ross, Esq.

Written on November 1, 2015 at 2:25 a.m.

Although it is important that an appellate brief be artfully drafted, victory on appeal may turn more on whether trial counsel had the forethought to ensure that an issue was preserved. This article reviews the general rules regarding preservation and explores the narrow exceptions to that rule that have been recognized by Colorado appellate courts. It then provides some practical suggestions for preparing for appeal during trial and beyond.

This article was originally published in the Pikes Peak Lawyer, October 2015 (Pages 8-10), the official publication of the El Paso County Bar Association.

Raising New Issues on Appeal

While there are many hurdles to winning on appeal, one of the first to overcome may be convincing the court to address the issue in the first place. Appellate courts generally will not address issues that were neither raised nor ruled upon by the trial court, and are brought up for the first time on appeal. In other words, most issues must be preserved for appeal, typically by presenting the issue to the district court and obtaining a ruling.

This general rule is more applicable to civil cases than criminal cases. Colorado appellate courts will routinely review certain unpreserved errors in criminal cases for “plain error” under Crim. P. 52(b), though even there the error must “cast serious doubt on the reliability of the judgment of conviction.” But if an issue in a civil case was not raised below, the odds of convincing a court to reach the merits are slight. Unlike the criminal rule, there is no corresponding plain error rule in the Colorado Rules of Civil Procedure. If counsel does not object to the admission of evidence at trial or raise an issue about an instruction given to the jury, a court on appeal is unlikely to be the first to say anything about the issue.

Like most general rules in law, this principle is not absolute. Colorado appellate courts have recognized a handful of exceptions that may allow courts to consider issues in civil cases that were not properly preserved. This article examines (1) issues involving jurisdictional defects; (2) issues involving certain instructional errors; and (3) issues involving the exercise of discretion under C.A.R. 1(d).

First, there is a clear exception to the general rule for issues that involve jurisdictional defects. Issues that implicate a court’s jurisdiction can always be raised for the first time on appeal in civil cases. This is because, without jurisdiction, a court is without power to act. So it must consider the issue of whether it has jurisdiction. Some common examples of jurisdictional issues include whether the court has the power to hear a specific type of case, whether the appeal is timely filed, and whether a party has standing to bring a claim. If jurisdictional defects have been missed previously, they can still be raised on appeal, and if the court agrees, they will be addressed.

Second, on at least one occasion, the Colorado Supreme Court applied a “plain error standard” in a civil case. In Blueflame Gas, the court recognized that a party’s objection to a jury instruction was not sufficiently specific to comport with C.R.C.P. 51. However, the court decided it was still adequate to preserve the issue for appellate review, and elected to address the correctness of the instruction under a plain error standard. But Blueflame Gas did not open the floodgates to plain error review in civil cases, and should probably not be relied on as such.

Not only was Blueflame Gas an example of a party that at least tried to object, though inadequately, but the case has been generally limited to waived instructional errors and treated by subsequent courts as an extremely narrow exception to the normal rule. In a case where the party had affirmed it had no objection to the jury instruction, the court held that the party had waived the issue, and dryly commented, “Only in rare instances, involving unusual or special circumstances, will an appellate court exercise its discretion to review, under a plain error standard, waived instructional error in a civil case.” And even then, courts appear reluctant to reverse on these grounds unless doing so is necessary to prevent a manifest injustice.

Finally, the rules of appellate procedure provide a basis for appellate courts to correct unpreserved errors in civil cases. C.A.R. 1(d) permits the appellate court “in its discretion” to “notice any error appearing of record.” Appellate courts have occasionally used this broad grant of discretionary authority to reach issues of grave importance that were not brought to the attention of the trial court below. For instance, if both the parties and the trial court misinterpreted controlling law, the appellate court may apply it. Again, litigants should not rely on this rule as a basis for asserting unpreserved claims. The rule is applied only very rarely in civil cases, so it is much better to argue the right law in the first place.

Setting Up Issues for Appeal in the First Place

Given that the chances of convincing an appellate court to address an unpreserved issue in a civil case are slim, preservation can be key to a successful appeal. The following practical suggestions can help both before an appeal, and before filing a brief with the appellate court.

Before the Appeal

Obviously, the best way to ensure that an appellate court will address your issue is to preserve it. Here are a few tips for the trial stage of litigation:

• Get Some Expert Advice. For important cases, such as those that implicate constitutional rights, contain issues of first impression, or involve high stakes, trial attorneys may consider getting independent legal analysis about trial issues and an analysis of potential appellate issues during trial preparation. Attorneys who specifically practice appellate law can assist with such an analysis. In very important cases, it may also be helpful to have an appellate attorney present during trial. With an eye toward appeal, such preparation can help ensure that all the issues that may need to be raised in the event of an appeal have been properly preserved.

• Preserve, Preserve, Preserve! Before trial, identify issues that could be relevant to an appeal and make sure your position is preserved in motions or during the trial. During trial or on motion, raise each issue specifically with the court. Make contemporaneous objections if necessary. Ensure the court rules on your objections and motions; some courts have considered the failure to obtain a ruling as an abandonment of the argument and a bar to later asserting it on appeal. You may need to ask the court for an opportunity to make a record on an important issue. Make sure that any discussion of such an issue is done on the record. Also, don’t forget to make sure that the facts that support your position on each issue are actually part of the record.

Suggestions when Drafting an Appellate Brief

Perhaps you are coming into the case as appellate counsel and thus did not have control over which arguments were made at the trial level. Or perhaps you are not sure if your issue is properly preserved. Here are a few tips:

• Carefully Review the Record. The importance of reviewing the appellate record cannot be overstated. In a careful review of the record, you may find a place where you can make the argument that the issue was preserved. Exactly what is needed to preserve an issue for appeal is very fact-specific—sometimes simply saying “Objection” is enough, depending on the context. What is important is whether the lower court was alerted to the error, and had enough information to recognize and correct it at that point. Make the argument that an issue is preserved if possible. If you are not sure, make the argument, but provide the court with the exact language of the record. If the issue was not preserved, be honest with the court, and suggest an alternative reason the court should consider the issue.

• Ensure Compliance with C.A.R. 28(k). This is the rule of appellate procedure that requires a party raising an issue to cite in its appellate brief to the specific portion of the record where the issue was preserved. Not only will failure to do this likely cause your brief to be stricken and sent back for correction, it also gives the party raising the issue the opportunity to establish why the court should review the issue and under what standard of review. Take advantage of this opportunity! In addition to following the procedural requirements of the rule by citing to the precise location in the record where the issue was preserved, it may be helpful to explain briefly why this is so. For example, “This issue was preserved below by a contemporaneous objection during trial. See R. at 155, ln. 15.” Or “This issue was raised in Plaintiff’s Motion for Summary Judgment and ruled upon by the trial court’s order dated 9/25/2014. See R. at 155; R. at 200.” By giving the court this information, you not only make the judges’ job easier, but you will demonstrate competence and make your argument more persuasive.

• Ask for Oral Argument. If you have an unusual reason why the court should hear your argument on appeal, ask for oral argument. You may at least get a chance to explain, for instance, why the plaintiff did not have standing. Or if your record has factual anomalies, you may get a chance to clear up any confusion for the judges. Appellate advocacy can be complicated. Sometimes, this difficulty is increased by the requirement that an issue be properly preserved in the lower court. With proper foresight, attorneys can ensure that they are not only giving their clients the best representation, but also ensuring that any appeal will be considered on the merits.