Preservation on appeal
Updated: Oct 13
Preservation is a critical requirement in appellate practice common to all jurisdictions. If you fail to preserve an issue for appeal, the appellate court will not consider it. Like pickles, preserving your issues for appeal takes some time and forethought but yields a salty, tangy, spicy treat when you return with an order for remand.
The Basic Requirement for Preservation
To preserve an issue for appeal, you must raise it with the trial court at the earliest opportunity. This means objecting to any alleged errors at trial and making a full record of the evidence in support of your claim.
The Elements of Preservation
There are four elements of a preserved argument:
Timeliness: You raised the issue with the trial court at the earliest opportunity. An objection first made in a motion for new trial is not timely. Jones v. Double "D" Properties, Inc., 352 Ark. 39, 48 (2003); In re Trusteeship of Trust of Williams, 631 N.W.2d 398, 407 (Minn. Ct. App. 2001).
Specificity: You raised the issue with specificity and legal grounds for ruling in your favor. Virgil v. State, 2020 Ark. App. 314, 8.
Ruling: You ensured that the trial court ruled on the objection. Taffner v. Arkansas Dep't of Hum. Servs., 2016 Ark. 231, 11; Volkman v. Hanover Invs., Inc., 843 N.W.2d 789, 798 (Minn. Ct. App. 2014)
Consistency: The issue you raised below is the same as what you argue on appeal. Travelers Cas. & Sur. Co. of Am. v. Sweet's Contracting, Inc., 2014 Ark. 484, 8; Morehouse v. Comm'r of Pub. Safety, 911 N.W.2d 503, 505 (Minn. 2018)
Examples of Preserved vs. Not Preserved Issues
Preserved: You object to the trial court's admission of a piece of evidence at trial, arguing that it is hearsay. On appeal, you renew your hearsay argument.
Not preserved: You do not object to the trial court's admission of hearsay at trial, and then complain on appeal that the trial judge considered the hearsay. This lacks all of the elements for preservation.
Preserved: You file a motion for a new trial, arguing that the trial court made several errors, including admitting hearsay evidence and refusing to give a certain jury instruction.
Not preserved: You file a motion for new trial which argues a claim or defense never previously raised. This fails the "timeliness" requirement.
Preserved: You ask the trial court to give a specific jury instruction, but the trial court refuses.
Not preserved: You ask the trial court to give several jury instructions, but the trial court only rules on some of them. This lacks the "ruling" requirement, you needed to reiterate the issue until the judge ruled on it.
Preserved: You move to dismiss because a prior case fully and finally resolved the claim and reconsideration is barred by res judicata.
Not preserved: You object to evidence of a prior claim being considered as irrelevant because a prior case fully and finally resolved the claim and reconsideration is barred by res judicata. The trial court overrules the objection and admits the evidence. On appeal you object that the claim was barred by res judicata. This fails the "consistency" element and demonstrates the importance of consulting with an appellate attorney before the trial. Baltz v. Baltz, 2021 Ark. App. 202.
Why You Need an Appellate Lawyer
Preservation on appeal is a complex and there are exceptions not addressed above. The plain error doctrine, for example, may allow you to appeal an issue even if it was not properly preserved. But you should never rely on plain error as a trial strategy.
If you are unsure whether you have preserved an issue for appeal, consult with an experienced appellate lawyer. An appellate lawyer can help you:
Identify the issues that you need to preserve for appeal.
Raise those issues with the trial court in a timely and specific manner.
Make a full record of the evidence in support of your claims.
File a post-trial motion that preserves your issues for appeal.
Argue your preservation issues on appeal.
Additional tips for preserving issues:
If you have any doubts about whether you have preserved an issue, object anyway. It is better to repetitiously object, knowing that the trial court will overrule the objection, than to fail to object and lose the issue on appeal. Only use this tactic on a case-turning issue, though, as it will alienate your judge.
If your issue on appeal is the exclusion of evidence, you must state what the evidence will show in order to prove prejudice on appeal. Ideally, proffer the testimony or exhibit but at least describe it.
If you foresee that you will need to appeal, do not hesitate to contact an experienced appellate lawyer. An appellate lawyer can help you strategize at the trial level to ensure your appeal will be presented in the best possible light.