Erin Newell and Shannon McLin Carlyle with Florida Appeals
Most errors a trial judge may make at trial are not preserved for appellate review unless trial counsel objects to the alleged error at the time the error occurs. This is known as the “contemporaneous objection rule.”
The rule is intended to provide a trial judge the opportunity to respond to an objection in real-time and to rectify the error.1 It also prevents enterprising counsel from gaining a tactical advantage by allowing errors to go unnoticed until the result is determined.2
Sounds pretty simple right? But not so fast. A bare “objection” is not enough. And there are no “magic words.” Rather, trial counsel must articulate the specific legal ground for the objection. That is to say, “the concern articulated in the objection must be sufficiently specific to inform the court of the perceived error.”3
Circumstances in which contemporaneous objection must typically be made include:
Circumstances in which an objection must typically be renewed include:
Ambiguous Rulings: Sometimes, a judge’s oral rulings on objections are unclear. And sometimes the judge refuses to rule on an objection. When in doubt, counsel must ask the judge to clarify his or her ruling at the time it is made. Counsel’s failure to secure a ruling on an objection generally waives a putative error.5
Admission of Evidence: Where the judge admits evidence over a party’s objection, counsel must state the specific ground for that objection. Common speaking objections such as “lack of foundation” or “improper predicate” are not enough, but an objection to “hearsay” is sufficient.6
Exclusion of Evidence: Where the judge excludes evidence on a party’s objection (even if partially overruling the objection), counsel must proffer the evidence outside the jury’s presence, either by paraphrasing a witness’s testimony, presenting the witness to testify, or where the evidence is documentary, providing a copy to the court. A trial court’s refusal to allow a proffer is an error because it prevents full and effective appellate review. Conversely, counsel’s failure to proffer evidence is typically a waiver of the right to argue the evidence was erroneously excluded.7
Undisclosed Witnesses and/or Opinions of Expert Witnesses: Where a previously undisclosed witness is tendered or an expert witness proffers new or changed opinion testimony, and the opposing party objects, the judge may suggest the witness be deposed. However, a mid-trial deposition cannot cure the prejudice the objecting party incurs from being denied the opportunity to rebut the surprise testimony.8
Improper Comment: Where the judge sustains an objection to improper comment, the objecting party must timely request a curative instruction or move for a mistrial to preserve the issue for appellate review. A curative instruction must be given close in time to when the objectionable comment was made and is generally considered sufficient to dispel any prejudicial effect.9 Sometimes objectionable comments will not warrant reversal when viewed in isolation but will when viewed together. A motion for mistrial must be made before the jury retires to deliberate.
Fundamental Error: While the fundamental error is the recognized exception to the preservation requirements,10 civil litigators should not rest their laurels here. In civil cases, it is an “error which goes to the foundation of the case or goes to the merits of the cause of action.”11 Florida courts have “all but closed the door on a fundamental error in civil trials.”12
For an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection below.13 A good rule of thumb is to ask yourself: Was the lower court given an opportunity to correct the exact error I want to argue on appeal? If your answer is yes, then the error is cognizable, and your argument will likely be considered by the appellate court. If not, the appellate court will likely find the putative error was waived or invited.
Losing an appeal is bad in itself, but losing because you unwittingly failed to preserve a putative error below is worse. Best practices to avoid finding yourself in that situation are to review the basics of the contemporaneous objection rule prior to trial, know the circumstances in which you’ll need to use (and in many instances) reuse it, be wary of the pitfalls, and finally, be mindful of the precise objections articulated below when framing your arguments on appeal.
Given the pace and breadth of issues counsel face at trial, it is oftentimes beneficial to have appellate counsel support in framing the issues. This doesn’t necessarily mean you’ll have an appellate attorney chair at trial. Rather, an appellate attorney may offer invaluable support at the trial phase in drafting motions in limine, jury instructions, verdict forms, bench briefs, and post-trial motions, such as renewed motions for directed verdict and motions for rehearing or a new trial, all of which are pivotal to framing the legal grounds for the trial court’s rulings.