Page 14 - Court of Appeal and Appellate Practice

S14 | MONDAY, AUGUST 25, 2014 | Court of Appeals and Appellate Practice
| NYLJ.COM

APPELLATE PRACTICE: PROCEDURE

By Scott Chesin
And Michael Rayield

Preserving Issues

For Appeal

A

n effective appeal begins at trial.
In virtually every appellate court

in this country, the general rule is
that an issue must irst 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 following a challenge for a cause evinces an category, lodge a contemporaneous objection.
doesn’t happen—a checklist of rules that a intent to waive whatever objections there may And an objection is not always enough. If a
New York lawyer must follow to ensure that have been to the challenged juror because it comment is particularly egregious—that is, if
any errors during the course of trial are prop- indicates satisfaction with the jury as impan- it was made in “bad faith” or causes “undue
erly preserved. The overriding principle is eled,” unless the party has already “exhausted prejudice”—the objecting party should also
this: Whenever something happens at trial his peremptory challenges.”7
move for a mistrial.10 If the court denies that

that can potentially form the basis of an Opening and Closing Statements. Attor- motion, the party should move for a curative
appeal, (1) object right away, (2) state the ney summations can be even trickier; they instruction to ameliorate the prejudice from
grounds for the objection clearly, and (3) get move quickly, and lawyers are often reluctant the improper argument. And if the court’s
an unambiguous ruling.
to interrupt them. But they can also be rife instruction is insuficient—for example, if the
Jury Selection. To preserve a challenge with inlammatory comments that can preju- court waits too long to give it—the party
based on the manner in which a jury is select- dice the jury’s decisionmaking, so counsel should object to that error.11 Failure to take
ed, a party must object “at a time when the should be ready to object. To avoid waiver, any of these actions can result in waiver of
trial court could correct the claimed error.”4 a party must make a “timely and specific an appeal based on the improper comment.
Most of the time, a party is required to raise objection[]” to an improper comment by a In People v. Livigni, for example, the Second

objections to the jury selection process lawyer,8 which usually means immediately Department held that a claim of prosecutorial
before the jury panel has been sworn—again, after the comment is made, not at the end misconduct during closing arguments was
so that the trial court has the opportunity of the argument.9
“largely unpreserved for appellate review
to “follow[] a different procedure.”5 And of If a lawyer is particularly concerned about since in most instances [the defendant] made
course, withholding an objection until after objecting in front of the jury during an open- only general objections, did not request cura-
the verdict is a sureire waiver.6
ing or closing argument, there is an option.
New York has a peculiar rule about chal- Consider moving prior to the argument for
lenges to a juror for cause. If a party’s for- an order preemptively overruling the client’s
SCOTT CHESIN is a partner and MICHAEL RAYFIELD
cause challenge is denied, the party must objections to a well-deined category of state- is an associate at Mayer Brown in New York, where
typically also use a peremptory challenge on ments. In other words, the court would be
the same juror (if possible), or waive any error granting counsel permission to forgo con- they are appellate litigators specializing in issue
with respect to the for-cause challenge. As temporaneous objections. But always err preservation during jury trials.
the Second Department has explained, the on the side of caution: If an attorney com-
“failure to exercise a peremptory challenge
ment does not quite fall within the deined