Failure to Understand Rules of Appeal Prevents Plaintiff From Recovery

When a personal injury case goes to trial, many attorneys are prepared for the trial itself. They may line up witnesses, prepare evidence, and have a good working knowledge of trial rules. But many attorneys don’t realize how important it is to not only understand the rules of evidence at trial, but to also understand the rules of appeals.

Preserving Matters for Appeal

Contrary to popular belief, an appellate court cannot review just anything that may go wrong or be improper at trial. An appellate court can only consider arguments that are made at trial. This is often called “preserving” an issue for appellate review. And it means that a trial lawyer must understand what has to be done at trial to preserve problems for appellate review.

The reason why matters must be preserved is because, generally, an appellate court can only consider things that a trial court gets wrong. But if an attorney doesn’t bring an objection to the trial court’s attention, or give a trial court the opportunity to correct a mistake, the trial court has been deprived of the chance to rule correctly or incorrectly.

A well-timed objection is enough to sufficiently preserve an issue for appellate review. But the failure to object will often mean that even if there was a problem that affected the outcome of your trial, there is nothing an appellate court can do to overturn it.

Injured Plaintiff Loses Appeal Because of Failure to Preserve Errors

This principle was again emphasized in a recent case where a defense attorney made improper arguments in closing.

Once again, contrary to what you may see on movies or TV, an attorney making closing arguments can’t just say anything. Closing arguments must be limited to discussion of evidence that was presented at the trial.

The case involved a plaintiff whose nails were injured during a paraffin wax treatment. She testified that her nails were disfigured for at least nine months, but she provided no photos of her nails during that time period.

The defendant’s attorney argued at closing that the plaintiff’s nails had healed during those nine months—an argument not based on any evidence since there were no photos of that time period admitted into evidence. The defendant’s attorney also stated that “this is a courtroom, not a lottery,” implying to the jury that the plaintiff was simply seeking to strike it rich by bringing the claim.

Ordinarily, both of these comments would be improper, being comments based on information not in evidence.

Sure enough, the jury entered a verdict giving plaintiff only 20% of the damages she was seeking.

The plaintiff appealed, arguing those comments were improper and prejudicial. But the plaintiff’s attorney did not object to them at trial, and did not request a “curative instruction” –an instruction by the judge to the jury to ignore a comment made during the trial. The plaintiff’s attorney also failed to move for a mistrial.

The appellate court found that the arguments had not been properly preserved at trial. It acknowledged that the comments were incorrect, but simply found it was powerless to do anything.

The case again emphasizes the importance of timely objections, and the proper motions that must be made, to allow problems to be considered at the appellate level.

If you are injured, you want attorneys who understand not just trials, but appeals as well. Talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. today for a free consultation about your case.


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