explains, “the main purpose of preservation of error is to promote judicial efficiency and give the trial court an opportunity to resolve the matter without an appeal.” Put simply, did you give the trial court a chance to get it wrong? “To preserve the error,” Belerin explains, “the record needs to reflect that the judge was given enough information to identify the error and correct it, if warranted.” For that reason, “it’s important to be specific when explaining on the record why you are objecting.” Stating the specific basis for your objection seems simple enough. But as experienced practitioners know, it can present a challenge. “Sometimes, in response to an objection, a judge will say ‘overruled’ before you have an opportunity to recite the basis for your objection,” advises Tabitha Brincat, senior partner at Brincat & New, PC. “You should ask that you be heard on the objection and, if the court is reluctant, recite that you need to make your record. This can be intimidating (especially for newer attorneys), but insisting on this can make the difference between an error that is preserved and one that is not.” Family law appellate attorney Andrew Newsom, of Holtey Law, provided some tips and tricks on building a good record. BEFORE TRIAL: Identify Your Evidence Early and Figure Out How to Get it In That medical record isn’t going to introduce itself. Have you subpoenaed the doctor? Obtained a stipulation from opposing counsel? “At a bare minimum,” Newsom explains, “the trial attorney’s job is to get helpful evidence in the record. Don’t put your discovery off until the last minute. Make sure you know how the evidence code will apply to your evidence.” Discuss Your Case with an Appellate Attorney “In a perfect world, the trial attorney would consult with an appellate attorney during the trial prep stage, if not sooner. That seems to happen very rarely unless you happen to have an appellate attorney friend or a colleague in your firm. That’s “Domestic relations decisions are reviewed for abuse of discretion — meaning that the trial court’s getting it wrong is not nearly enough to warrant a reversal. …Only a determination that is plainly unsupported by reason or evidence will be reversed.” See Success on Appeal p. 38 37 Trial Lawyer | Summer 2024
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