Appellate Insights

August is supposed to bring some vacation time.  So for a change, how about a list of trial errors that you can argue on appeal with no objection in the record?

Yes, all of the following errors (and more, but don’t get complacent!) are preserved for appellate review without a peep made in the trial court:

• Dismissed on demurrer and didn’t seek leave to amend?  By statute, it’s “open on appeal.”
• The court used your opponent’s dead-wrong jury instruction and you didn’t object?  As long as you didn’t expressly agree to it, another statute deems the court’s error “excepted to.”   (But the key phrase is “dead-wrong.”  If an instruction is generally right, but not clear or specific enough, you do have to offer a better one, or the issue is forfeited.)
• Held your fire while the judge commented on the evidence, in a way that unfairly hurt your side?  Again: saved by statute.  The Legislature knew you wouldn’t want to cut off His or Her Honor in midstream.
• Developed doubt about plaintiff’s standing to sue only after suffering a judgment?  It’s okay; you can raise that for the first time on appeal.
• And everyone’s favorite from law school—a trial court’s subject matter jurisdiction.  You can challenge that any time at all.

►  The practical message:  Chill out.  That is … unless your problem is one of the 1000 other errors that can happen at trial.  😉