Disclaimer

The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.

 Skip to Content

Be Wary About A Trial Court's Assurances of Preservation
August 03, 2016

Imagine a trial judge is trying to move things along at a charge conference. An issue arises, trial counsel begins to voice objections, and the judge short-circuits the discussion by saying, “Your rights are saved on the issue.” Later, the trial is lost, appellate relief is needed, and a question arises about what exactly the incomplete objection preserved.

Events much along these lines occurred in Perrone Leather Apparel, Inc. v. Sleesen, 2016 WL 3032659 (Mass. App. Div. May 6, 2016). Before being prodded to move on, trial counsel had objected that the evidence did not support certain instructions. On appeal, the party also argued that the instructions were based on affirmative defenses that had not been raised in the pleadings. In an effort to avoid a lack of preservation, the party argued that the trial court’s declaration about rights being saved permitted additional arguments to be made on appeal.

The appellate court disagreed. It held that the only rights preserved were those relating to objections actually made, on grounds actually raised.

Preservation Issue:

  • All possible grounds for objection should be made on the record, even if the trial court attempts to shorten the discussion by stating that the matter is preserved or saved.

Tip:

Be careful when a trial judge attempts to cut short an objection or series of objections. Certainly the trial judge’s instructions must be followed, but an opportunity to obtain appellate relief may be lost if the specific grounds to be asserted on appeal were not also asserted at trial. If the judge insists on moving on, respectfully make clear that there is more to be said and utilize the first reasonable opportunity to say it.
Authored By
Image: Matthew J. Conigliaro
Matthew J. Conigliaro
Related Practices
Appellate & Trial Support
©2024 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.