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Protecting the Record

Thomas R. Newman and Steven J. Ahmuty Jr.

The protection of the record needed to preserve your right to challenge asserted error at trial consists of much more than bobbing up and down during trial to voice objections, although it is certainly necessary that timely and appropriate objections be made. It begins when the first pleading is drawn, as the record on appeal from a final judgment consists of the judgment-roll (CPLR 5526a), which includes the pleadings (CPLR 5017a). It is, therefore, necessary to review and comply with CPLR §§3013-3020 when drafting your pleadings. While leave to amend pleadings is to be freely given, before or after judgment, if there is no prejudice to the opposing party (CPLR 3025b), it is better to get it right the first time. You will save your client the expense of making a motion for leave to amend and avoid the anxiety that comes from not knowing whether your motion will be granted and, if granted and the order is appealed, whether it will be affirmed or reversed as an abuse of discretion.

CPLR §5501(a)(3) provides that an appeal from final judgment brings up for review, inter alia, any ruling to which objection was made (CPLR §4017, “Formal exceptions to rulings of the court are unnecessary”), or “any failure to act as requested by the appellant,” and “any failure or refusal to charge as requested by the appellant, to which he objected” (CPLR §4110b). You must be specific in your objection; if a general objection is overruled, it is a waiver of all grounds which might have been obviated if they had been specifically stated. “A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence.” People v. Vidal, 26 N.Y.2d 249, 254 (1970).

In making objections to rulings, the trial lawyer is often confronted by a conflict between tactics and the preservation of appellate rights. Incessant jumping up and down during trial in order to voice objections may create the unfavorable impression on the jury that the lawyer is being hyper-technical and intent on suppressing the truth. If circumstances permit, it may be possible to take a continuing objection to an entire line of questioning. See Kulak v. Nationwide Mut. Ins. Co., 40 N.Y.2d 140, 145-46 (1976) (“Although objection was not made to every question during this line of testimony the objections ‘were sufficient to cover the whole of the material accepted as evidence’”).

If the court sustains an objection and refuses to permit counsel to comment on the law or some other aspect of the trial (e.g,, failure of the other side to call a particular witness), the issue will not be preserved for appeal unless a record is made of what counsel would have said and the context in which the remarks would have been made. In Pieniewski v. Benbenek, 56 A.D.2d 710, (4th Dept. 1977), plaintiffs argued that their attorney had the right to comment on the law during summation. “While properly circumscribed comment on the law may be permitted in limited circumstances (see Williams v. Brooklyn El R.R. Co., 126 N.Y. 96, 104) plaintiffs have failed to preserve the issue for appeal. There is no record of counsel's comment or the context in which it was made, and thus we cannot affix error to the trial court's ruling. Similarly, plaintiffs' contention that the trial court precluded comment upon the failure of the defense to call a certain witness has no basis in the record.”

Each lawyer will have to decide for himself/herself what tactics should be pursued in protecting the record during trial, whether to ask for a side-bar conference, or for a ruling in the absence of the jury, or whether an objection should be made in the first instance. These decisions will depend on the nature of the action, how the trial is going, what the jury looks like and all the other factors that influence the decisions of an experienced trial lawyer.

If a proffered exhibit was excluded, be sure to have it marked for identification so that it becomes part of the record on appeal and will be available to the Appellate Division. Similarly, if a ruling of the court prevents you from pursuing a particular line of questioning, or one of your witnesses is precluded from testifying on an important topic, in addition to objecting to the ruling, be sure to make a clear offer of proof outside the presence of the jury. This is the only way that the appellate court will be able to assess whether you were prejudiced by the ruling.

You have an absolute right to make an offer of proof for the record, although not necessarily at the precise moment when the ruling against you is made. In De Vito v. Katsch, 157 A.D.2d 413, 422 (2d Dept. 1990), the trial court’s dismissal on plaintiff’s opening was reversed “because the plaintiff did not have a chance to present the offer of proof, we do not know what proof he was prepared to introduce.” If the court does not permit you to make your offer of proof at the time of its ruling, ask permission to place your offer of proof on the record at the next recess or at the end of the court day. And then remember to do it.

It is also necessary to describe for the record any type of prejudicial conduct that takes place during the course of the trial and which the court reporter may not, or cannot, automatically record. For example, there may be improper communications, verbal or otherwise, between jurors and opposing counsel, a party or a witness, facial expressions or vocal inflections by the court or counsel which the jury can interpret as indicating displeasure or disbelief, shouting at or otherwise badgering a witness, etc. All such events must all be recorded if they are to be raised and considered by the appellate court as a ground for reversal and a new trial.

If opening statements are not recorded, to preserve a claim of error, immediately object and state for the record the objectionable remark and ask that the remainder of the openings be recorded. Similarly, if opposing counsel in summation refers to facts not in evidence or makes comments upon matters which are immaterial or irrelevant to the issues, “the required and proper practice is for opposing counsel to interrupt the summation for the purpose of objecting to the improper statements therein.” People v. Marcelin, 23 A.D.2d 368, 370 (1st Dept. 1965); Layton Sales & Rentals v. Somat Realty, 39 A.D.2d 640 (4th Dept. 1972).

While there may be times when tactics dictate it might be better not to object to a ruling, the court’s charge to the jury is one area where there should be no hesitation about clearly asserting one’s legal position. If you do not timely object to the charge, then no matter how erroneous it is, for purposes of the appeal, it will be deemed to be a correct statement of the law and the law of the case. “It is well settled that the charge of the Trial Judge, insofar as it is not excepted to, becomes the ‘law of the case’, binding upon the parties, even though it be an erroneous statement of the law of this State.” Brown v. Du Frey, 1 N.Y.2d 190, 195-196 (1956).

CPLR 4100-b provides that “any party may file written requests that the court instruct the jury on the law as set forth in the requests” and requires that the “court, out of the hearing of the jury, shall inform counsel of its proposed action upon the requests prior to their arguments to the jury …” It is advisable to ask that the charge conference be recorded by the court reporter. If your requests to charge are not read into the record in full, they should be marked as a court exhibit and thereby they will become part of the record on appeal.

The fact that following rendition of an unfavorable verdict counsel moves to set it aside as contrary to the law and, for the first time, calls the court’s attention to the alleged error in its charge, will not relieve him or her of the effect of failing to make a timely objection before the verdict was returned. “The act of the Judge in erroneously charging the jury upon the law in the case, although it necessarily results in a verdict not authorized by law, is not an error for which the jury is responsible, but is an error of the Judge, to be pointed out by an objection and if a party fails to make an objection he cannot raise the question upon a motion for a new trial.” Brown v. Du Frey, 1 N.Y.2d 190, 196 (1956).

If written questions are to be submitted to the jury, it is necessary that objections as to the form of the questions should be made before the jury retires to deliberate. An objection first made after the return of an unfavorable verdict will be deemed untimely. See Chanatry v. Williams, 57 A.D.2d 730 (4th Dept. 1977) (“The subsequent verdict was based upon a written question which was approved by counsel, included in the court's charge and submitted to the jury without objection. Since defendant took no exception to its propriety at trial, his objection at this stage of the proceedings is untimely”).

Finally, requests to charge must be 100 percent correct or else they may be denied. Therefore, avoid including such absolutes as instructing the jury that it “must find” a certain way. And, most importantly, do not build error into an otherwise winnable case, or you will “snatch defeat from the jaws of victory.” If your opponent is entitled to a particular request to charge, consent to it.

Thomas R. Newman is of counsel to Duane Morris and author of “New York Appellate Practice” (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are members of the American Academy of Appellate Lawyers.