Skip to main content


  • AddRemove
  • Build a Report 
Media Coverage

Preserving Issues for Appeal

25 August 2014
New York Law Journal

An effective appeal begins at trial. In virtually every appellate court in this country, the general rule is that an issue must first be presented to the trial court before it can be raised on appeal. New York is no exception: Its appellate courts typically will consider only arguments that have been "preserved for appellate review,"1 so that "errors of law … can be avoided or promptly cured" by the court below.2 Only a "very narrow category" of "fundamental" errors are exempt from this rule.3 No lawyer should count on getting around it.

Preservation is not always fun. It takes up a lot of time (and ink), it diverts attention from other trial matters that will undoubtedly seem more pressing, and it often annoys judges, juries, and (especially) opposing counsel. It is also easy to forget about, particularly in the heat of trial litigation. But lawyers ignore preservation at their peril; doing so can cost them a fruitful appeal before it even begins.

Here are some tips to make sure that doesn't happen—a checklist of rules that a New York lawyer must follow to ensure that any errors during the course of trial are properly preserved. The overriding principle is this: Whenever something happens at trial that can potentially form the basis of an appeal, (1) object right away, (2) state the grounds for the objection clearly, and (3) get an unambiguous ruling.

Jury Selection. To preserve a challenge based on the manner in which a jury is selected, a party must object "at a time when the trial court could correct the claimed error."4 Most of the time, a party is required to raise objections to the jury selection process before the jury panel has been sworn—again, so that the trial court has the opportunity to "follow[] a different procedure."5 And of course, withholding an objection until after the verdict is a surefire waiver.6

New York has a peculiar rule about challenges to a juror for cause. If a party's for-cause challenge is denied, the party must typically also use a peremptory challenge on the same juror (if possible), or waive any error with respect to the for-cause challenge. As the Second Department has explained, the "failure to exercise a peremptory challenge following a challenge for a cause evinces an intent to waive whatever objections there may have been to the challenged juror because it indicates satisfaction with the jury as impaneled," unless the party has already "exhausted his peremptory challenges."7

Opening and Closing Statements. Attorney summations can be even trickier; they move quickly, and lawyers are often reluctant to interrupt them. But they can also be rife with inflammatory comments that can prejudice the jury's decisionmaking, so counsel should be ready to object. To avoid waiver, a party must make a "timely and specific objection[]" to an improper comment by a lawyer,8 which usually means immediately after the comment is made, not at the end of the argument.9

If a lawyer is particularly concerned about objecting in front of the jury during an opening or closing argument, there is an option. Consider moving prior to the argument for an order preemptively overruling the client's objections to a well-defined category of statements. In other words, the court would be granting counsel permission to forgo contemporaneous objections. But always err on the side of caution: If an attorney comment does not quite fall within the defined category, lodge a contemporaneous objection.

And an objection is not always enough. If a comment is particularly egregious—that is, if it was made in "bad faith" or causes "undue prejudice"—the objecting party should also move for a mistrial.10 If the court denies that motion, the party should move for a curative instruction to ameliorate the prejudice from the improper argument. And if the court's instruction is insufficient—for example, if the court waits too long to give it—the party should object to that error.11 Failure to take any of these actions can result in waiver of an appeal based on the improper comment. In People v. Livigni, for example, the Second Department held that a claim of prosecutorial misconduct during closing arguments was "largely unpreserved for appellate review since in most instances [the defendant] made only general objections, did not request curative instructions when the objections were sustained, and did not make a timely motion for a mistrial based upon the specific grounds asserted on appeal."12

Evidence. Similar principles apply to evidentiary objections. To preserve those, a party must make a "timely," specific objection.13 Once again, that usually means objecting immediately when the opposing party seeks to introduce the evidence deemed to be improper.

In some (but not all) states, the denial of a pretrial motion to exclude evidence is sufficient to preserve the error for appeal, even if counsel fails to object when the evidence is introduced at trial. In New York, the issue is unclear; the appellate courts do not seem to have ruled on the question of whether the denial of a motion in limine is sufficient to preserve error in the absence of a contemporaneous objection. Therefore, counsel should object to purportedly improper evidence at trial even if he has already unsuccessfully moved in limine to exclude that evidence. And if a motion in limine has been granted with respect to a particular category of evidence, counsel must be vigilant about policing that ruling. If the other side introduces evidence that was excluded prior to the trial, and no contemporaneous objection is lodged, the error is not preserved.

Sometimes, counsel can rely on a "continuing" objection to a particular category of evidence. New York courts have noted that continuing objections may, in certain circumstances, eliminate the need to make repeated objections to similar evidence,14 but that they are sometimes "ill-advised."15 Continuing objections are helpful only if (1) the court expressly rules on them in advance, and (2) they are very well defined. It is dangerous to depend on a continuing objection if there is any ambiguity about whether a particular exhibit or line of testimony falls within the original objection. If so, object again.

Once the court has ruled on an evidentiary objection, counsel is faced with more choices. If the objection is overruled, counsel should (if necessary) ask for a limiting instruction defining the contours by which the jury may consider the evidence.16 For example, if evidence has been admitted solely to prove a defendant's state of mind, the jury should be told that it cannot be considered for any other purpose, and it is up to the defendant's counsel to secure that instruction.

If the court sustains an objection to a piece of evidence, counsel's job is not necessarily done. The jury may very well have been prejudiced by the evidence despite being told to disregard it. If so, as with opening and closing statements, counsel should ask for a mistrial (if proper) and a curative instruction (if the mistrial motion is denied).17 If a curative instruction is insufficient, counsel should say so on the record.18
What if one's own evidence is excluded? In that case, counsel should make what is called an "offer of proof"—a presentation of the evidence outside of the presence of the jury to "demonstrate [its] relevance."19 Offers of proof "must be made clearly and without ambiguity …, leaving no room for debate about what was intended."20 Again, the best practice is to be as thorough as possible.

Jury Instructions. Jury instructions may be the most important aspect of appellate preservation. Errors in instructions can be a very fertile ground for appeal, but they are also easy to accidentally waive.

The first rule is to make written requests for all of the jury instructions that counsel believes are required.21 Make sure these instructions are correct in all respects. Otherwise, even if the trial court erred in failing to give a portion of a proposed instruction, that error may not be reversible on appeal. Counsel should carefully divide up the proposed instructions so that the trial court has to issue a ruling on each component. If appropriate, offer alternative forms of the same instruction, in case the trial court rejects a more aggressive form.
In addition to proposing instructions, counsel should object to the trial court's instructions as given to the extent that they deviate from the proposed version. "No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection."22 The best time to do this is in a charge conference on the record but outside the presence of the jury—which counsel should request if the trial court does not schedule one on its own. If the trial court refuses to conduct a charge conference on the record, counsel should object to the procedure and should file a set of written objections memorializing any objections and rulings that were made at an off-the-record charge conference.

Jury Deliberations. When the jury is finally sent to deliberate, much of counsel's job is simply to wait around for the verdict. But not always. The jury might give some indication that its deliberations are not being conducted properly—another potential ground for an appeal.

For example, a new trial may be granted where the jury's deliberations were affected by "improper extraneous information or outside influence"—that is, by facts outside the record.23 Sometimes, a jury will send a note to the court asking for information or explaining the status of deliberations. Such notes can often be a powerful indicator of whether the jurors are playing by the rules and limiting their consideration to the facts in front of them. If the jury sends a note, make sure that the note is read, and responded to, in open court.24 And if there has been foul play, object and move for a mistrial before the verdict is delivered; do not wait to see what the jury decides.25

Motions for Judgment as a Matter of Law. Finally, a few notes about dispositive motions. There is technically no requirement in the CPLR that a party may only move for judgment notwithstanding the verdict after trial if he first moves for directed verdict at the close of the opposing party's evidence.26 In fact, the CPLR was intended to "abolish[] that notion."27 Nonetheless, some courts continue to apply this requirement. In Hurley v. Cavitolo, for example, the Second Department held that "[b]y failing to move for a directed verdict" on an issue at the close of the opponent's evidence, "the plaintiff implicitly conceded that the issue was for the trier of fact," thus barring the party from arguing on appeal that she was entitled to judgment as a matter of law.28 To be cautious, make both motions.

It is also unclear whether New York law requires a party to make a motion for new trial in order to preserve a claim for that relief on appeal. In Huff v. Rodriguez, for example, the Fourth Department rejected the defendants' argument that the plaintiff had waived certain arguments by failing to raise them in her motion for new trial, holding that they were preserved "either because they were raised in the post-trial motion or during trial."29 But in Leonard v. Unisys, the Third Department held that the defendants had waived any request for a new trial by their "failure to preserve the issue by posttrial motion to set aside the verdict."30 To be cautious, make the motion.

By now, the theme should be obvious. When an error occurs, counsel should object right away, object clearly, and secure a ruling. Preservation is not rocket science, but it does require vigilance, attention to detail, and a willingness to be a bit of a pest—often under circumstances where counsel feels natural pressure to appear genial and cooperative. No lawyer wants to tell a judge that his ruling is erroneous, or to insist on articulating an objection the judge has indicated he does not wish to entertain. For this reason, it is often quite helpful to have a dedicated member of the trial team—a "legal issues lawyer"—assigned to handle preservation. That way, trial counsel can concentrate on building a rapport with the judge and jury (and attempting to win the trial!), while appellate counsel is busy making sure that everything is in place for appeal—in case the effort is unsuccessful.

1. People v. Casanova, 62 A.D.3d 88, 91 (1st Dep't 2009).
2. People v. Martin, 50 N.Y.2d 1029, 1031 (1980).
3. Casanova, 62 A.D.3d at 91.
4. People v. Hopkins, 76 N.Y.2d 872, 873 (1990).
5. People v. Butler, 214 A.D.2d 1014, 1015 (4th Dep't 1995).
6. Gamell v. Mt. Sinai Hosp., 40 A.D.2d 1010, 1011 (2d Dep't 1972).
7. People v. Foster, 100 A.D.2d 200, 204 (2d Dep't 1984).
8. People v. Hampton, 73 A.D.3d 442, 444 (1st Dep't 2010).
9. See Cattano v. Metro St. Ry., 173 N.Y. 565, 572 (1903).
10. People v. Melendez, 178 A.D.2d 366, 367 (1st Dep't 1991).
11. See People v. Canty, 228 A.D.2d 245, 245 (1st Dep't 1996).
12. 288 A.D.2d 323, 324 (2d Dep't 2001).
13. Warren v. N.Y. Presbyterian Hosp., 88 A.D.3d 591, 592 (1st Dep't 2011).
14. See Kulak v. Nationwide Mut. Ins., 40 N.Y.2d 140, 145 (1976).
15. People v. Santarelli, 49 N.Y.2d 241, 253 (1980).
16. See, e.g., People v. Williams, 50 N.Y.2d 996, 998 (1980).
17. See People v. Harvin, 254 A.D.2d 29, 2930 (1st Dep't 1998).
18. See People v. Santiago, 52 N.Y.2d 865, 866 (1981).
19. People v. Billups, 132 A.D.2d 612, 613 (2d Dep't 1987).
20. People v. Greany, 185 A.D.2d 376, 37778 (3d Dep't 1992).
21. See CPLR §4110b.
22. Id. (emphasis added).
23. People v. Redd, 164 A.D.2d 34, 39 (1st Dep't 1990).
24. See Emp'rs Mut. Liab. Ins. of Wis. V. Di Cesare & Monaco Concrete Constr., 9 A.D 379, 385 (1st Dep't 1959).
25. See Reilly v. Wright, 55 A.D.2d 544, 545 (1st Dep't 1976).
26. See CPLR §4404.
27. Commentary to CPLR § 4404, at C4404:1.
28. 239 A.D.2d 559, 559 (2d Dep't 1997).
29. 64 A.D.3d 1221, 1222 (4th Dep't 2009) (emphasis added).
30. 238 A.D.2d 747, 751 (3d Dep't 1997).
Scott Chesin is a partner and Michael Rayfield is an associate at Mayer Brown in New York, where they are appellate litigators specializing in issue preservation during jury trials.

Reprinted with permission from the 25 August 2014 edition of the New York Law Journal © 2014 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.”

Related Information

  • Related People
    Scott A. Chesin
    T +1 212 506 2274
    Michael E. Rayfield
    T +1 212 506 2560

The Build a Report feature requires the use of cookies to function properly.  Cookies are small text files that are placed on your computer by websites that you visit. They are widely used in order to make websites work, or work more efficiently.  If you do not accept cookies, this function will not work.  For more information please see our Privacy Policy

You have no pages selected. Please select pages to email then resubmit.