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Out of Cite, Out of Mind: Preserving Off-the-Record Objections

April 22, 2015 2:53 PM | Posted by Jeffrey A. Cohen and James Parker-Flynn | Print this page

Preservation of Error TipsAs we have discussed many times in this blog, one of the fundamental rules of appellate practice is if something is not in the record, it did not happen. For that reason, it is important to try to eliminate arguments held “off the record,” or where circumstances dictate that off-the-record arguments take place, to ensure an adequate record gets made so that the appellate court can ascertain what was said and why.

Nowhere should the rule against off-the-record arguments be enforced more vigilantly than in the context of jury charge conferences. Erroneous jury instructions are one of the most fertile grounds for appeal, if – and only if – the appellate point is preserved. The failure to make an adequate record in this context can be very costly, as demonstrated in a recent case out of Texas.

In Clark v. Dillard’s, Inc., NO. 05-13-01503-CV, 2015 WL 1346099 (Tex. App. Mar. 25, 2015), a fashion model sued his former modeling agency and a department store after discovering that his image had been used on store packaging for many years. The model argued on appeal that the trial court erred in overruling his objections to questions in the jury charge, which he alleged were internally inconsistent and incorrect as a matter of law. Although the model presented excerpts from the record that seemingly referenced his objections, the Court of Appeals held that the ambiguous language cited did not actually show that he made any objection to the jury questions, much less the specific objections on appeal. As such, the court held that the model had not preserved the error.

Preservation Issue: The failure to make an adequate record of an objection, particularly to jury instructions, will almost certainly result in waiver.


On the list of comments an appellate lawyer hates to see in the record, the most dreaded might be, “ Sure Judge, we can do this off the record.” The Clark case illustrates the obvious point that, where at all possible, a charge conference should be on the record. If the court will not allow the charge conference to be on the record, for whatever reason, counsel must take the steps necessary to ensure that his or her objections and arguments are sufficiently recorded. Some judges might allow you to go on the record and state your objections to the various jury charges and the verdict form just as you did off the record. But this is easier said than done because it is virtually impossible to recreate the dialogue between the parties and court as they worked through the instructions. Many times, for example, there was a compromise made after the initial ruling, and thus it will be important to explain how the parties got to the final version of the instruction.

In some instances, the court will not allow the parties to go through all of their objections on the record and will simply ask if there are any objections to the final version. Counsel should still make every effort to ensure that your argument is preserved by requesting the opportunity to be heard on the record or, where that is not possible, filing written objections to the charge and the verdict form setting out the grounds that you previously argued.