Appellate Tip: Preserve your Client’s Issues
This month’s appellate practice tip is primarily concerned with the conduct of your client’s case at the lower court. Since the appellate court can only consider the record as it was developed below, it is critical, and procedurally required, that you make sure any appealable issue is preserved in the record.
Pa.R.A.P. 302 (a) states, “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” This means that you, the trial attorney, have to be diligent and on guard at all times to preserve your client’s rights. Diligence may be voicing an objection to testimony or certain jury instructions and charges. This diligence may require filing a motion even if you have little hope in obtaining the requested relief.
Do not make the mistake of raising an issue informally with opposing counsel, or at an off-the-record conference with the judge. An appellate panel is unlikely to find these informal steps sufficient to preserve the issue for appellate review. In Coffey v. Minwax Co., Inc., 764 A.2d 616 (Pa. Super. Ct. 2000), the Court held that the appellant waived the issue of incorrect jury instruction where the objection was made during an off-the-record discussion held in chambers. Because the discussion was not made a part of the certified record, the Court held it was “not privy to it” and could not review it. Coffey, 764 A.2d at 623, fn. 8.
Don’t forget that the need to preserve issues begins when the case is initiated, and isn’t relegated only to the conduct of trial. A plaintiff waived her claim that a defendant dog owner was negligent per se by failing to specifically raise the issue in her pleadings. McCloud v. McLaughlin, 837 A.2d 541 (Pa. Super. Ct. 2003). Similarly, a plaintiff waived her claims as a third-party beneficiary of a contract where her complaint lacked any discussion regarding the formation of the contract between the contracting parties, and failed to specify that recognition of standing was appropriate to effectuate the intent of the parties. Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115 (Pa. Super. Ct. 2004).
Preserving the issue is the first step. The second step is making sure your brief identifies the place in the record where the issue was preserved. Pa.R.A.P. 2117 (c). In Victoria Gardens Condominium Ass’n v. Kennett Tp. of Chester County, 23 A.3d 1098 (Pa. Super. Ct. 2011), the Superior Court refused to address the appellant’s issue in the absence of any indication that the issue was preserved in the trial court. Victoria Gardens stands for the proposition that an issue preserved at trial has no value unless your brief specifically shows the appellate court where and how that issue was preserved. Accordingly, don’t relax your guard once the issue is preserved. Make sure you “show your work” by identifying where the issue was preserved.
If you have any questions regarding this topic, or civil appeals in general, please feel free to contact Paul Fellman at:
(610) 565-1708 ext. 24,
Or by email at firstname.lastname@example.org