The Importance of Error Preservation

It breaks the heart of an appellate lawyer to read an opinion in which an appellate court notes that an error alleged on appeal was not properly preserved in the trial court. Properly preserving a claim of error is the first step to a successful appeal. The recent decision of the Georgia Supreme Court in Williams v. Harvey, Case No. S20G1121 (decided May 17, 2021), highlights the importance of knowing how to preserve errors for appeal.

The case addressed the relationship between motions in limine and objections made during trial. A party can file a pre-trial motion in limine to ask a trial court to prevent certain arguments or exclude (or allow) certain items of evidence. But, if one party makes such a motion and motion is granted, and the other party proceeds to make an argument or offer evidence contrary to the trial court’s prior ruling, must the first party object? In Williams, the Georgia Supreme Court answered “yes.”

In Williams, the defendant made a pre-trial motion in limine to prevent the plaintiff from making an argument during trial. The trial court granted the motion. Nevertheless, during closing argument, plaintiff’s counsel allegedly violated the ruling on the motion in limine. But, the defendant did not object during the improper argument. The Georgia Supreme Court held that a contemporaneous objection was required. Even though the defendant had raised the issue in the motion in limine, the alleged violation of the order was not properly preserved for appeal because the defendant made no objection at the time the improper argument was made.

The Williams case highlights the importance of thinking about a potential appeal well before trial. No trial lawyer wants to contemplate losing at trial. However, to properly preserve issues for appeal, trial counsel must consider what can go wrong at trial and plan for what needs to be done to preserve errors for later review. Involving appellate counsel in trial preparation can help trial counsel flag steps that should be taken to preserve issues for appeal.

The opinion is available at

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