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Tuesday, August 20, 2013


I have talked about how important it is to speak up and object if anything goes on during a court hearing that you believe is a violation of your legal rights. 
You have to do this even though a judge might try to intimidate you and try to prevent you from speaking up by lecturing you about not speaking out of turn or telling you that such objections are unnecessary. 
It is always important to object. 
It is important to object because you might actually alert the judge to a problem right at that moment.  The judge might not respond immediately, but could change course at some point later on during the hearing.  It is rare, but I've seen that happen. 

Raise It or Waive It:
The bottom line, though, is that if you are thinking about taking the next step and going to appeal, at the superior court level you have to make sure you have brought to the judge's attention the issues you intend to raise later on appeal. 
Appellate Court reviews the record in the case to see whether there are legitimate grounds for appeal.  If you haven't placed your concerns on the record in pleadings, motions, or exhibits presented to the lower court or in your oral presentation to the court reproduced in transcripts of the trial, then you will not be able to appeal the ruling in your case. 
As the saying goes, "raise it or waive it." 
You can waive your right to object to an issue simply by going along with a ruling without raising an objection. 
To make sure you have a record of everything that took place in your case, here are some suggestions:  
Side Bar Conferences or Meetings in the Judge's Chambers:  
Such meetings are a classic way that important information ends up off the record.  If the Judge makes rulings--for example, on the admissibility of evidence, in meetings like this that are off the record, it will be almost impossible to appeal those decisions. 
Therefore, you have to find a way to put them on the record.  The best way to do this is to insist that there is a court reporter during the entire meeting. 
If that is not possible, make sure that once you get back in court you put everything that was said on the record by making mention of them once the hearing resumes. 
You can also file a motion for reconsideration or a proposed order in which you summarize the content of the meeting so that there is a written record of what was said in the file. 
Evidentiary Issues:  

There are two ways evidentiary issues become significant.  Either you tried to get an exhibit accepted and the court denied you, or the opposing side submitted an exhibit and it was accepted over your objections. 
In both circumstances, you have to take action if you want to preserve the issues for review by the Appellate Court. 
If the judge refuses to admit your evidence as a full exhibit, In order to preserve a claim to have it admitted, what you have to do first is object, and second you have to make an "offer of proof". 

Offer of Proof:
An offer of proof involves explaining what the excluded evidence is and what it would show if the trial court allowed it to be admitted. 
If you don't provide this offer of proof, the appellate court will not be able to understand what the evidence was and why the evidence  was important to the case. 

Get Your Evidence Marked For Identification: 
Furthermore, even if the excluded document does not get admitted as a full exhibit, you should make sure that the document is marked for identification so it will be included in the record and the Appellate Court can later determine if it should have been accepted as a full exhibit after all.
Likewise, if you are attempting to exclude your opponent's evidence, you should make an immediate objection to that evidence and state the exact grounds of your objection, i.e. "relevance", "hearsay", "misleading".

Get a Specific Ruling From the Judge: 
Make sure that you get a specific ruling from the judge in regard to the objections you raise.  Watch out for a situation where the judge says he won't admit the evidence now, but might admit it later.  In these circumstances, unless you make continued efforts to submit that evidence, it may end up being an issue that is considered waived.

Alternate Theories in Your Case:
Keep in mind that if you have any theories of your case, the time to raise those theories is immediately during the trial.  Appellate Courts only review old theories of a case, not new ones.

Objecting to the Memorandum of Decision:

 Furthermore, once the Memorandum of Decision comes out in your case, make sure you raise concerns about any omissions, inaccuracies, or ambiguities in the decision in a timely fashion, otherwise, again, if you don't raise it, you waive it. 

Assumptions in Appellate Court:
Keep in mind that the Appellate Court operates with the basic assumption that the trial court ruled correctly.  In order to overcome that assumption, you have to have a solid argument that is based upon the record.  If you have not created an adequate record, you will simply waste everyone's time and lose. 
Of course, most of us are self represented parties.  Most of the time we lose simply because the judicial system refuses to take us seriously.  However, at least if you take these very simple, straightforward steps to preserve the record for appeal, you won't make a fool of yourself and whatever small chance you have will be maximized.


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