No, no citation, but I do a lot of administrative law and I watched almost every episode of L.A. Law, plus some old Perry Mason.
I already said it was for appeals.
It matters to the reviewing court if they agree that the judge’s ruling was significantly out of bounds (egregious). Lots of latitude in life.
Well, in Virginia, although there is a fair amount of latitude regarding what counts as preserving the record, the appellate courts (and the Commonwealth) are quick to rely on our Rule 5A:18, which provides that the appeals court will not consider trial court error as a basis for reversal where no timely objection was made, “…except to attain the ends of justice.”
If there was no trial court record claimed, I guarantee you that here, at least, the first hill to climb will be the Commonwealth’s argument that the issue is procedurally waived.
county:
I’m in complete agreement that it matter to the appeals court if the trial court ruling was egregiously wrong.
What I don’t understand is what you’re claiming that has to do with the trial court procedure and the lawyer’s reaction. If the lawyer fails to note an “exception,” may he still bring the error to the appeals court? Will they review it any differently?
When it exists, it’s surplusage (hoop-jumping).
One (of a few) remnants that remains in Texas:
If I want to put on evidence in the form of a certain line of questioning, and the judge excludes it, I have to make what is called an “offer of proof” or “bill of exception”. After the witness is done with the rest of his/her testimony, I ask that the judge excuse the jury from the courtroom so I can “make my bill”. Then I ask the witness what I wanted to ask, i.e., the question about gang colors. The court reporter is recording it, opposing counsel is there, etc. The judge is supposed to be listening, but more often he’s reading his newspaper.
Now, at the end of all this, I must formally offer the testimony as a bill of exception or offer of proof, and must formally get the judge to – again – refuse to allow the jury to hear the questions and answers. Is there any doubt? I mean, has any lawyer ever gone through all this and then decided “oh, well, that testimony wasn’t really that exciting, I don’t care whether the jury hears it”? Of course not. Everyone in the courtroom knows the drill as soon as it starts.
But if I don’t make that second offer, and get a second ruling refusing to let it in, I’ve waived my error and the whole episode is a non-issue on appeal.
For this reason, I’ve seen judges actually leave the courtroom (no offense meant or taken) during the making of the “bill”. They are called back just so that we can go through the re-offer, re-reject procedure.
So, this is a real-life example of this sort of thing. Again, there is a real reason, in theory: it gives the judge a chance to hear the testimony and reconsider. (Remember, at first, all the judge heard was the lawyer arguing what the testimony would be, when the other side starts objecting to the line of questioning). But in practice, it’s just some hoop-jumping . . .
JohnW77707, Esq.
(To clarify): I’m not criticizing the procedure for the making of the bill. The judge should have a chance to hear the actual testimony. The critique/example is that if I don’t re-offer it, the court of appeals will consider me to have waived the whole point of error, even though everyone in the courtroom (and everyone on the Court of Appeals) knows full well what was being done and why.
JohnW77707, Esq.
To BRICKER:
It’s just a question of the standard of review. If error is preserved, most evidence rulings are reviewed under the standard of “abuse of discretion”, which is tough but not impossible. The tougher standard of review, if error is not preserved (this is all Texas-specific) is “plain error”.
I can’t give you the definitions offhand, but in shorthand “plain error” means “This is sooooo bad that it is an embarrassment to the judicial system and so we [the Court of Appeals] has to step in and save the system and the client from the incompetent judge who made the ruling and the incompetent lawyer who failed to preserve the error.”
Plain error is EXTREMELY rare to find. I’m talking like if the Judge says “I instruct the jury that, in addition to the evidence, another reason to find for Plaintiff Bubba against Defendant Dale is that because Bubba is a good guy and Dale spends all of his time in peep shows.”
JohnW77707, Esq.
Right, right - I am very familiar with that.
The question is, is there a difference, with respect to preserving appellate review, between scenarios A and B below?
Scenario A:
Scenario B:
I contend that in both scenarios, you have equally preserved your objection for appellate review. There is no difference, in any jurisdiction I’m aware of, between A and B.
Rick – I agree that it is probably preserved in most, if not all jurisdictions. But I wouldn’t want to bet my lungs that there isn’t some jurisdiction out there that still requires the “exception” business. There are at least a half-dozen still-existing traps in Texas that would probably shock people who practice in most other jursidicitons.
JohnW77707, Esq.
Bricker addressed the criminal side; just want to toss in the rule on the civil side. From Link v. Wabash Railroad Co., 370 U.S. 626 (1962):
So on the civil side, if the attorney screws up, you lose and your only possible relief is to sue your attorney.
Sua
Maybe this should be come an ‘Ask About Procedure’ thread!
One other formality that’s observed here in the Commonwealth is akin to what JohnW said above - even if you have argued a motion in limine, argued it vigorously, had an evidentiary hearing, put on the best show since Clarence Darrow slew William Jennings Bryan, and lost… the loss of that issue is not preserved for appeal unless you make the motion again during trial.
Just to add a minor point here - generally, with an appeal for ineffective assistance of counsel, the best the defendant gets if he wins his appeal is a new trial with new counsel, not a dismissal. While it’s possible that, in the meantime, evidence will go stale, witnesses will forget or die, etc., since most defendants must spend their time on appeal in prison (or wherever they would be absent the appeal), this is not likely a very effective strategy.
Hmmm . . . . so if I have a good case against a potentially judgment proof debtor, I should hire a really rotten lawyer and hope that her or she blows the case. 
(I’m just daydreaming, so for heaven’s sake, don’t anyone take this as serious legal advice. It ain’t.)
Apologies for the selective quote, the remainder isn’t germane to my question
I have a question about that point about “lying behind the log”. I have heard claims that some defendants use that as an explicit strategy, despite the rules which restrict it. That is, the defense expects to lose at the trial level, and so concentrates on getting to the appellate level to get reversal there. I don’t know how realistic these charges are, but this looks like the thread to ask the question in.
To construct a hypothetical: The plaintiff, ably represented by JohnW, is “impossibly” sympathetic: a sweet little girl suffering crippling injuries. The defense is not: a large corporation, a municipality, an insurance company, whatever. Would a defense attorney reason that the jury’s sympathies are going to be nearly impossible to overcome and therefore attempt to get a reversable error so that they can prevail at the appellate level? I realize that the successful appeal would likely result in a new trial, but the defense might also reason that prolonging the process would exhaust the plaintiff’s resources.
Again, I have no idea if this is used or would succeed. I have seen this used mainly as a plot device, but I leave it up to the assembled legal minds to pick it apart or whatever.
I defer to my brothers and sisters of the civil bar, but while I suppose it’s possible, it seems unlikely to me. Many jurisdictions require the appellant to post bond before appealing, so you have to part with the cash for the judgement at least temporarily. It seems to me you’d do better arguing the law to the judge and angling for a JNOV.
But that’s just speculation. I have no expertise in the civil law world.
hmmm - again, this seems awfully complicated to me. We don’t have any equivalent procedure here.
Since we’re delving into the minutiae of procedure, what’s a motion in limine? Is it a pre-trial motion? a motion made without the jury being present?
Paperbackwriter, the problem with your suggestion is that even if the appellate court found reversable error, the remedy would be to remand the case for a new trial, which would also be before a jury.
A defendant that has to put up an appeals bond (also known as a supersedeas bond) to secure the judgment on appeal. However, for a major company that shouldn’t be a problem, particularly if the damages are covered by insurance. (I think in New York at least insurance companies have special procedures with regard to appeals bonds which makes it easier for them.)
Northern Piper, a motion in limine is a pre-trial motion regarding the exclusion (or inclusion) of evidence. If there is a particular item or class of evidence that a party wants to keep out (or be sure to have let in), that party can make a fully briefed pre-trial motion on the evidence, giving the judge time to consider it on the papers, rather than having to make a ruling in the middle of an ongoing trial.
As Bricker pointed out, a motion in limine is a bit hypothetical because the court does not know what other supporting or foundation evidence will be propounded at trial. Often the ruling on the motion will be conditional (I’ll let in his tesimony if a proper foundation is laid, or her testimony will be excluded, unless defendant opens the door by testifying on a related subject). This is the reason for the rule that a motion in limine must be reasserted at trial for appellate consideration.
Well figured I’d say something because I started this thread.
I never thought I would get this much response !! Thnaks all !!
Anyway, (and I still think this pertains to my original question), some posters stated that voicing an exception is important if the case is later brought to an apellate court. Also, some jurisdictions still require it for other reasons. So, if taking exception is so important, just to “play it safe”, why doesn’t EVERY lawyer do this with EVERY overruled objection?
And as I also asked, why don’t we ever see this in TV and movies (except for "the Verdict)?
Gee- I did NOT mean for my second posting to bring this discussion to a screeching halt. Talk about Roe vs Wade if you want to. It has been an interesting thread.
It’s not that you’ve killed the thread, it’s probably just that most of the lawyers went home for the weekend and are away from their computers on a Friday night, like I wish I was.
I think you might have misunderstood; voicing an exception used to be important if you were planning on appealing a decision. In most jurisdictions, maybe all, it’s not required anymore for any reason. Most lawyers don’t say “exception” anymore because it’s no longer necessary in the jurisdiction that they practice in (sorta like barrister’s wigs over here in the colonies). Except for certain very limited purposes (like marking a certain objection to make it easier to find in the record like Redhawke.the.bard said), there’s just plain no need to say it anymore, so they don’t say it. They don’t have to “play it safe”; they’ll know if excepting to an objection is required to preserve error for appeal in their jurisdiction or not, and generally, it’s not.
Thanks for the info, Billdo. Up here, we sometimes have pre-trial motions to seek a ruling on an evidentiary point, but my understanding is that most judges don’t like to deal with anything that’s heavily fact-dependent before the trial proper - would rather have the full context before deciding. However, if you do get a ruling in a pre-trial motion, there’s no need to bring the issue forward again at trial. The Supreme Court has held that pre-trial motions are considered part of the trial for the purposes of appeal, even if the motion was decided by a judge in chambers who wasn’t the trial judge.