The Oklahoma Bar Journal January 2025

L aw P ractice B asics

The Basics of Preserving Error for Appeal

A Trial Lawyer’s Guide for Making a Better Appellate Record

By Justin A. Lollman and Andrew J. Hofland

A LL LAWYERS MAKE MISTAKES. Often, they are small and can be fixed. But that is not always the case. And sometimes it is those small mistakes that carry the harshest consequences.

Nowhere are harsh conse quences for small mistakes more common than in the rules govern ing error preservation for appeal. A moment’s hesitation, a poorly phrased objection, one too many questions – that is all it takes to waive or forfeit an issue. The consequences can be devastating. Within seconds, inattentive coun sel can lose an appeal before one ever gets filed. Avoiding this result requires vigilance and preparation. While the rules for preserving error on appeal are extensive and – in some areas – complex, trial coun sel must have a firm grasp of the basics. That is what this article aims to provide – a trial lawyer’s guide for not only avoiding some of the most common preservation mistakes at trial but also making the best record possible.

“the opportunity to take correc tive action and to avoid unneces sary error.” 2 Timeliness. The timeliness of a motion or objection depends on the issue. A summary of the applicable timing requirements for some of the most common objections and motions at trial is provided on the next page. Depending on the circum stances, timeliness may require repetition. While it is generally unnecessary to repeat or renew an objection made at trial after it has been conclusively overruled, 14 if the evidence or circumstances have changed, a renewed objec tion may be required. 15 That the court overrules an objection to a particular piece of evidence does not necessarily preserve an objection to all future evidence or testimony offered on the same general topic. 16 When in doubt,

THREE CARDINAL RULES FOR PRESERVING ERROR While the rules for preserving error on appeal are nuanced and can vary by issue, broadly speak ing, there are three cardinal rules. You need 1) a timely and specific objection or motion, 2) a ruling from the court and 3) a record establishing both. Making a Timely and Specific Objection or Motion Preserving error starts with a timely objection, request or motion. Error preservation rules are grounded on principles of proce dural fairness and judicial economy, the idea being “the best place to correct error in the first instance is in the trial court where ... the prin cipal focus of the litigation should be.” 1 For that to occur, parties must raise issues in a timely and specific manner, giving the court

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

28 | JANUARY 2025

THE OKLAHOMA BAR JOURNAL