To Err Or Not To Err: Preservation For Appeal

In complex civil trials, attorneys often focus solely on prevailing at the trial court. But the best trial lawyers know that the trial court is but one battleground. The appellate courts often determine the ultimate outcome in complex civil matters that proceed to trial. To win, properly preserving issues for appeal is a strategic imperative.

A victory on an issue at the trial court becomes pyrrhic in the best light if that outcome will cause an appellate reversal or will otherwise prolong and increase the cost of victory.

Appellate courts are not trial courts. They do not reweigh evidence or retry cases. Instead, they review the record for legal errors.

If an issue was not properly preserved in the trial court, it is often waived, and the appellate court will not consider it. And even if the issue is technically preserved, a poorly developed record can lead to a deferential standard of review that makes reversal less likely.