Preserving Issues for Appellate Review: Practice and Pitfalls

By Barbara D. Goldberg

Introduction

Whether an issue is "preserved" can often make the difference in how an appeal is decided. The failure to make an appropriate offer of proof or request to charge, or the failure to make a timely objection, can result in an otherwise valid issue not being considered by an appellate court. A party may not stand mute when evidence is admitted at trial and then argue on appeal that it should not have been admitted. Nor may a party claim that a different charge should have been given if no request was made for it at trial.

At the Court of Appeals level, preservation is a jurisdictional prerequisite. Thus, even if an issue is novel, represents a conflict between the Appellate Divisions, or otherwise satisfies the requirements for review by the Court of Appeals, the Court of Appeals cannot consider the issue if it was not raised in a timely manner in the trial court. Preservation is so crucial for Court of Appeals jurisdiction that the rules of the Court require the appellant's jurisdictional statement to include "citations to the pages of the record where the issues sought to be reviewed are raised and preserved...." (Rule 500.2(c)).

While the Appellate Division has a broader "interests of justice" jurisdiction which, in appropriate circumstances, permits it to review unpreserved error that is particularly egregious or "fundamental", this power is rarely invoked. In most cases the failure to preserve an issue means that the Appellate Division will decline to consider it as well. The Appellate Divisions have heavy case loads, and like all courts, are to some extent result-oriented. Therefore, if the Appellate Division does not want to consider a particular issue, the fact that an error was unpreserved provides an obvious rationale for avoiding it. If the issue is preserved, however, the Appellate Division will generally consider it on the merits.

The requirement of preservation is founded in considerations of fairness. It is considered unfair to ask an appellate court to reverse a trial court's determination if the trial judge did not first have the opportunity of considering the issue. Similarly, raising an issue in the trial court affords opposing counsel an opportunity to respond.

Preservation is an important consideration at literally every stage of a trial, from jury selection through post-trial motions and the entry of judgment. This article discusses examples of common "preservation" issues, and offers suggestions for how an appropriate record may be made.

Trial Court Rulings

Objections and offers of proof are preservation concepts with which most trial counsel are familiar. A timely objection permits the appellate court to consider the effect of an improper question, and an offer of proof allows a determination of whether the excluded evidence would have made a difference in the jury's findings. Under CPLR 5501(a)(3), an appeal from a final judgment brings up for review "any ruling to which the appellant objected or had no opportunity to object or which was a refusal or failure to act as requested by the appellant, and any charge to the jury, or failure or refusal to charge as requested by the appellant, to which he objected." Objections should therefore be made to all adverse trial rulings.

Offer of Proof

Similarly, where the trial court refuses to allow a particular witness to testify, or excludes a document or picture from evidence, it is essential to make an offer of proof as to what the excluded evidence would have shown. Counsel, of course, can summarize what a witness's testimony would have been, but the better practice, if the trial court allows it, is to have the witness testify outside the presence of the jury. (If the court does not allow the witness to testify, that ruling itself can be emphasized on appeal as an example of the court's prejudicial conduct.)

Having the witness testify allows appellate counsel to make a convincing argument as to what the effect of his or her testimony would likely have been. For instance, if the proceeding is one to determine the value of a minority shareholder's interest in a corporation, and the trial court excludes testimony as to what a particular witness would have paid for the corporation, it is much more compelling to have the witness's actual opinion in the record. If the court valued the minority shares at $1,000,000, an argument backed up by an offer of proof that, according to the formula used in the particular business, the witness would only have paid $500,000 for the entire corporation, may convince the appellate court that the exclusion of the testimony was prejudicial. On the other hand, if trial counsel merely objects to the exclusion of the testimony, with no offer of proof, appellate counsel may be reduced to arguing generally that the excluded evidence would have been "relevant," and that its exclusion was "prejudicial." Obviously the specifics will be more effective.

Marking For Identification

Similarly, documents or pictures that are excluded from evidence should be marked for identification. This enables the appellant to get the actual item of excluded evidence before the Appellate Division. The effect can sometimes be dramatic, as is demonstrated by the case of Castro v. Alden Leeds, Inc., 144 A.D.2d 613, 535 N.Y.S.2d 73 (2d Dept. 1988), where the plaintiffs were injured when a canister of swimming pool chemicals exploded. Apparently the contents of the canister had been exposed to moisture and had formed a volatile gas. The trial court excluded a 300 page book produced by the manufacturer, the Monsanto Industrial Chemical Company, which described the chemical's properties in detail. This book had been provided to the defendant distributor, and the plaintiffs contended that on this basis, the defendant had notice of the chemical's dangerous properties. On appeal after a defendant's verdict, the plaintiffs had the "Monsanto book" bound as a separate volume of the Record on Appeal. Thus, the Appellate Division could see first hand the extent to which the book "contained critical information about the notice Leeds had of the potential hazard posed by the chemical." On the basis of this and other errors, the Appellate Division reversed and ordered a new trial.

Errors In The Charge

Preservation is particularly crucial where errors in the charge are concerned. A party claiming that the trial court should, or should not, have given a particular charge to the jury, as for example a missing witness charge when the defendant failed to call his examining physician in a personal injury action, must first have made a timely objection or exception in the trial court. The reason for requiring a timely objection, of course, is to give the trial court an opportunity to correct an erroneous charge. If the error is not pointed out, the court does not have the opportunity to do so. Gilliland v. Delaware & Hudson Co., 207 App. Div. 509, 202 N.Y.S. 710 (3d Dept. 1924). Like trial rulings, any errors in the charge or refusals to charge as requested are brought up for review under CPLR 5501(a)(3), provided that the appellant objected.

A typical response to an attempt to raise, on appeal, an unpreserved error concerning the charge is set forth in Chazon v. Parkway Medical Group, 168 A.D.2d 660, 661-2, 563 N.Y.S.2d 488, 490 (2d Dept. 1990):

[A]t no time did counsel for the appellants complain, in time for the trial court to cure the alleged defect, that the evidence had not been adequately marshalled, that the contentions read to the jury (in the precise form drafted and requested by their counsel) were unsatisfactory, or that there was anything wrong with the verdict sheet. In consequence, these issues are unpreserved for this court's review (citations omitted).

Exceptions to the charge should be specific and focus on the particular language or concept that the party contends is erroneous. A general exception, such as a statement excepting to all the ways in which the charge, as given, differs from the party's requests to charge is insufficient. Hamilton v. Raftopoulos, 176 A.D.2d 916, 575 N.Y.S.2d 531 (2d Dept. 1991); Rogers v. Long Island R. Co., 29 A.D.2d 47, 285 N.Y.S.2d 803 (lst Dept. 1967), affd. 22 N.Y.2d 918, 295 N.Y.S.2d 47 (1968).

Issues Concerning The Jury's Verdict

A preservation issue that is somewhat less well-known is the requirement that an objection to a jury verdict on the grounds of inconsistency be made before the jury is discharged. This allows the issue to be re-submitted to the jury if the court agrees that there is an inconsistency. Of course, it may be difficult to recognize an inconsistency at this point, as a well known dissent at the Court of Appeals has noted:

[T]he requirement which the majority would impose, that counsel have explored all facets of the inconsistency in the immediacy of the reporting of the verdict, is unreal....in this case, involving nine parties, three separate theories of recovery and a general verdict, such a requirement is patently unreasonable. To expect counsel, at the peril of his client's rights, to fathom the myriad lines of reasoning which the jury might have followed in reaching their conclusions, all in the spontaneity of the tension-filled moments after the pronouncements of the verdicts, is to make our preservation practice a test of gamesmanship rather than a fair procedural device. Barry v. Manglass, 55 N.Y.2d 803, 812-813, 447 N.Y.S.2d 423, 429, 432 N.E.2d 125, 131 (1981)(Fuchsberg, J., dissenting).

Nevertheless, despite the validity of these observations and the potential difficulty of noting an inconsistency in the "tension-filled moments" after the verdict has been returned, it is not enough to raise the issue after the jury has been discharged or in the post-trial motion. The objection must be made while the issue can still be sent back to the jury for further consideration.

If the objection is not timely, the appellant is left to argue that a particular finding is against the weight of the evidence or unsupported by the evidence. This is usually not as forceful or persuasive as pointing out an inconsistency between two different findings, as for example findings in a medical malpractice action that the defendant's negligent recommendation for a procedure caused the injury, but that the procedure itself did not cause any damage.

Timely objections on the ground of inconsistency are particularly important in the Appellate Division, Second Department, which has strictly construed the requirement that the objection be made before the jury is discharged. The First Department is somewhat more forgiving on this issue: in Vera v. Bielomatik Corp., 199 A.D.2d 132, 134, 605 N.Y.S.2d 75,77 (lst Dept. 1993), the Court commented that the "disbanding of the jury without plaintiff's noted objection here obliterated neither his right to seek a new trial, nor the court's capacity to grant it, where the interest of justice manifestly requires it." Nevertheless, it is still preferable, regardless of where the case is pending, to raise the objection before the jury has been discharged, in order to foreclose any argument that it has been waived.

The issue of inconsistency is likely to arise in complex products liability or medical malpractice actions involving different defendants and numerous theories of liability. In these cases, counsel would be well advised to ask the court to hold the jury for a few minutes so that the verdict can be reviewed for inconsistency and a timely objection made.

Conduct Of The Court And Opposing Counsel

Other preservation issues concern the conduct of the trial court and opposing counsel. A particularly difficult tactical issue is posed by a trial court's excessive intervention at trial, as for example by taking over the questioning of a witness, or making repeated observations on the quality of the evidence. The affected party may be reluctant to object, for fear of antagonizing the court. Yet, some kind of a record is essential. Fortunately, it need not be extensive. The Court of Appeals, in People v. Yut Wai Tom, 53 N.Y.2d 44, 56, 439 N.Y.S.2d 896, 903, 422 N.E.2d 556, 563 (1981), has said that "[i]n these circumstances it must suffice that [counsel] enters an objection to the improper conduct at a meaningful time during the trial and has not previously encouraged the objectionable conduct."

If such an objection is not made, however, the Appellate Division is likely to conclude that the issue has not been preserved, unless the court's conduct was so egregious that the Appellate Division decides to invoke its infrequently-utilized "interests of justice" jurisdiction. This is demonstrated by Camperlengo v. Lenox Hill Hospital, 239 A.D.2d 150, 657 N.Y.S.2d 894 (lst Dept. 1997), a recent case where the plaintiff contended that the trial court, through its questioning, had favored the defendants. On plaintiff's appeal from a judgment in favor of the defendants, the Appellate Division affirmed on the ground that the issue was unpreserved: "[p]laintiff's contentions that the Trial Judge willfully acted to sabotage her case and ensure a defense verdict are unpreserved for appellate review, since plaintiff did not render that complaint, in any form, prior to rendition of the verdict (citation omitted)."

Objections must similarly be made to prejudicial comments in summation, or the aggrieved party must move for a mistrial on that basis, if the issue is to be preserved for review. As with prejudicial conduct by the trial court, a party cannot gamble on the outcome of the trial and then register objections only after an adverse verdict has been returned. Appellate courts consistently decline to reach the issue of prejudicial comments in summation if they are not preserved. The Appellate Division, Fourth Department, in Holtz v. Aldridge, __A.D.2d__, 683 N.Y.S.2d 451 (4th Dept. 1998), recently summed up the necessity of a timely objection as follows:

Plaintiff's sole contention on appeal is that various remarks by defense counsel in summation were so unfair and prejudicial as to require a new trial. Plaintiff failed to move for a mistrial until after the jury rendered its verdict, and thus the motion was untimely (citation omitted).

The First Department similarly made short shrift of the appellant's contentions in Balsz v. A and T Bus Company, __A.D.2d__, 675 N.Y.S.2d 604, 605 (lst Dept. 1998), where "[d]efendant's argument that it was deprived of a fair trial by plaintiff's summation was not preserved by a motion for a mistrial, or by specific objections addressed to most of the comments in question."

Preferably, objections should be made when the comments are made, rather than waiting until the end of the summation. In the well-known case of Berkowitz v. Marriott Corp., 163 A.D.2d 52, 558 N.Y.S.2d 511 (lst Dept. 1990), even though the Appellate Division found that prejudicial comments in plaintiff's attorney's summation warranted reversal, it made a point of noting that it would have been better for defense counsel to object during the summation, and not afterwards. (Berkowitz was the case where, among other comments, counsel argued that there was no reason for the defendants to obtain experts from Suffolk County, except that they could not locate a physician who would support their case "from here to Suffolk County," and "after that, boy, it's Europe.") The Appellate Division commented, "[a]lthough it would have been preferable for defense counsel to have objected to the improper comments as they were being uttered rather than waiting until the conclusion of the summation, the fact remains that the interest of justice compels that the judgment be set aside and the matter remanded for a new trial." 163 A.D.2d at 54, 558 N.Y.S.2d at 512.

Strategy Issues

Other preservation issues might really be described as strategy issues. One such issue, for example, is the question of whether the defense should call its own economic expert. Although trial counsel may be inclined to view this as a concession of damages, in many jurisdictions, including California, it is common for the defendant to call an economist. Any prejudice inherent in the fact that the defense has called an economist can probably be dissipated by appropriate comments in summation or an instruction from the trial court that the defendant's calling an economist is not a concession that damages should be awarded.

Trial attorneys should not make the mistake of thinking that they can accomplish the same results through cross-examination of the plaintiff's economist. It is very rare for an economist's figures to change radically on cross-examination. At the appellate level, if the only evidence in the record is from plaintiff's economist and the jury's awards for pecuniary loss correspond to the economist's testimony, it is difficult for appellate counsel to prevail on an argument that the verdict is excessive. For example, in Kavanaugh v. Nussbaum, 129 A.D.2d 559, 563, 514 N.Y.S.2d 55, 59 (2d Dept. 1987), mod. on other grounds 71 N.Y.2d 535, 528 N.Y.S.2d 8, 523 N.E.2d 284 (1988), the Appellate Division affirmed an award of lost earnings to a neurologically impaired infant, based on the plaintiff's economist's testimony, where the "defendants adduced no evidence as to what he might have earned over the course of his lifetime in a vocational setting." In Altman v. Alpha Obstetrics and Gynecology, P.C., 255 A.D.2d 276, 278, 679 N.Y.S.2d 642, 644 (2d Dept. 1998), the Court affirmed a $3,000,000 award for lifetime lost earnings for an infant plaintiff, "[b]ased upon the testimony of the plaintiffs' economist and the [defendant's] failure to rebut that testimony."

Some economists are "forensic economists", and instead of just "crunching the numbers" a little differently by using a more modest inflationary factor, they actually delve into the socioeconomics of the plaintiff's job. A forensic economist might show, for example, that the business plaintiff intended to enter would likely have failed. In Stringile v. Rothman, 142 A.D.2d 637, 530 N.Y.S.2d 838 (2d Dept. 1988), the plaintiff recovered a judgment of $2 million for wrongful death, based on the supposed profits of a Ford dealership that the decedent was about to open at the time of his death. The Appellate Division reversed on the ground that evidence of the future profits was too speculative. At the retrial, the defendant called a forensic economist who did a detailed study of market conditions at the time, and testified, based on the experience of Ford dealerships in areas with a similar socioeconomic base, that the decedent's business would likely have failed. The jury at the retrial awarded $130,000 for wrongful death, of which $70,200 was for lost earnings. Although plaintiff appealed on the ground of inadequacy, this award was affirmed on appeal, since it was supported by the testimony of the defendant's economist.

While not every case will be so dramatic, the point of having a forensic economist is that at least it gives the Appellate Division a different way of viewing the evidence. The opinion of the defendant's economist may prevent an automatic deference to findings based on plaintiff's expert's testimony, as in Kavanaugh or Altman, on the ground that there is no other evidence of lost earnings in the record.

Another strategy-related "preservation" issue concerns the use of a forensic psychiatrist or psychologist to explain unusual behavior by the plaintiff that might not otherwise be comprehensible to the jury. For example, the plaintiff's attorney in a case where the plaintiff was raped, but delayed in reporting the incident, might call a psychologist specializing in "rape trauma syndrome" to explain the psychological basis for such conduct and that such delays are, in fact, relatively common. Defense counsel may similarly consider calling a forensic psychologist to explain such matters as "secondary gain syndrome" and the effect that litigation can have on certain persons' perception of their injuries.

In either event, a record is established and the testimony elicited provides appellate counsel with support for the arguments advanced on appeal. An appellate court will be more likely to consider an argument that the damages are excessive when there is evidence from the defendant's expert explaining what the plaintiff could earn in a vocational setting, or where there is expert evidence explaining "secondary gain syndrome," than where arguments are merely advanced by appellate counsel that the plaintiff did not prove that he was incapable of any kind of work, etc.

Post-Verdict Issues

A full discussion of CPLR Articles 50-A and 50-B, providing for periodic payment of future damages in medical malpractice and personal injury cases, is beyond the scope of this article. It is important to remember, however, that at some point before the entry of judgment, the defendant should request an Article 50-A/50-B hearing and a collateral source hearing under CPLR 4545; otherwise, the plaintiff may argue that the issues have been waived.

If the injury is severe, and the plaintiff has been receiving and will continue to receive social security disability payments, or other types of reimbursement, failure to request a collateral source hearing can result in the loss of thousands of dollars in collateral source reductions that could otherwise have been set off against the lost earnings award. The request can take the form of a sentence in a written post-trial motion, or a statement on the record after the verdict has been returned, requesting a collateral source hearing. In addition, it may be advisable to think ahead to the collateral source hearing even as early as the discovery phase of the case, and conduct discovery as to what collateral source payments the plaintiff has been receiving. This will foreclose an argument, later on, that the issue was waived.

A somewhat less known provision than CPLR 4545 is CPLR 4546, which applies to medical malpractice actions, and permits the Court to "reduce any award for loss of earnings or impairment of earning ability by the amount of federal, state and local personal income taxes which the court finds, with reasonable certainty, that plaintiff would have been obligated by law to pay". A request for reductions under CPLR 4546 must likewise be made before a judgment is entered, or it will be waived.

Companion provisions of the EPTL, pertaining to wrongful death actions based on medical malpractice, provide that the jury, not the Court, shall determine the effect of taxes the decedent would have paid. The relevant provisions are EPTL 5-4.3 (c)(I) and (ii), which provide as follows:

(c)(i) In any action in which the wrongful conduct is medical malpractice or dental malpractice, evidence shall be admissible to establish the federal, state and local personal income taxes which the decedent would have been obligated by law to pay.

(ii) In any such action tried by a jury, the court shall instruct the jury to consider the amount of federal, state and local personal income taxes which the jury finds, with reasonable certainty, that the decedent would have been obligated by law to pay in determining the sum that would otherwise be available for the support of persons for whom the action is brought.

Thus, in these cases the issue must be raised before the jury by offering the expert testimony of an accountant, and if the evidence is excluded an appropriate record should be made.

In addition to these specific post-verdict preservation issues, the losing party should always move for judgment notwithstanding the verdict or a new trial on the grounds that the verdict is against the weight of the evidence. This will preserve the issues of the weight and sufficiency of the evidence for appellate review. The defendant should also move for a directed verdict at the close of the plaintiff's direct case. In federal practice, a motion for judgment as a matter of law at the close of the plaintiff's case is a prerequisite to a motion after the verdict, and the grounds are limited to those raised in the prior motion. A motion must also be made after the verdict in order to preserve the issue. As the Second Circuit has stated, "[t]o preserve for appeal a challenge to the denial of a pre-verdict motion for judgment as a matter of law, a movant must renew that motion after the verdict." Varda v. Insurance Company of North America, 45 F.3d 634, 638 (2d Cir. 1995).

Conclusion

In the final analysis, such decisions as whether to call a particular expert must be made on a case by case basis. With respect to objecting and making a record, however, certain rules are nearly universal: adverse rulings and instructions and any failure to charge as requested should be preserved with an appropriate exception; a detailed offer of proof should be made concerning the exclusion of evidence; and inconsistent verdicts must be excepted to before the jury is discharged. In addition, timely motions addressed to the weight and sufficiency of the evidence should be made. An appropriate rule of thumb might be to make an objection or appropriate record as to any conduct or ruling that seems objectionable; if it seems objectionable it probably is. While timely preservation of issues will not guarantee success on appeal, it will at least ensure that an issue will be considered on the merits.