At Sullivan|Simon, we regularly write state and federal briefs for appeals. And we frequently have to determine whether an issue is properly preserved for appellate review. For example, in Pennsylvania, any issue that is not properly preserved is waived and cannot be reviewed on appeal under any circumstance. In the federal system, Circuit Courts will review some errors for plain error even if they are not properly preserved. But winning on plain error review is only a bit less challenging than winning on a Hail Mary in the waning seconds of the fourth quarter.
There are a plethora of social media and blog posts by appellate attorneys imploring trial attorneys to object on the record. And some appellate attorneys have an air of contempt when discussing trial attorneys who they think did not object vigorously object. But a few recent conversations at S|S headquarters has me thinking that some of the blame belongs with the very appellate attorneys that shift blame to trial lawyers. We appellate attorneys need to push back on waiver much harder.
This came up when S|S was working on a federal appeal over a criminal defendant’s sentence. He claimed that a particular upward sentencing departure was not warranted. His attorney made an argument that the offense level should be a certain number. And the Government then made its argument that the offense level should be a few points higher based on the departure. The judge ruled in favor of the Government.
On appeal, the legal minds at S|S questioned whether this issue was properly preserved. The trial attorney did not say the word “objection” and he did not make any additional argument once the Government requested the upward departure. But in the course of his argument, he asked for a specific offense level and he did not receive that specific offense level. So, is the issue preserved?
I think a lot of appellate attorneys would proceed under plain error. The Government in its reply brief sure thought it should be reviewed under plain error. But I disagree. Defense counsel made a full argument. The Government made a full argument to the contrary. And the judge ruled. To me, that is a fully litigated matter and there is no reason to resort to plain error. And this is but one of many examples of scenarios where I think some appellate attorneys might whine and claim that the trial lawyer should have done a better job.
I was a trial lawyer for a substantial portion of my career. And it is hard to say “objection” at all the right times. A witness, a judge and opposing counsel might be giving you a hard time all at once. You might have just been shot down rudely by a judge and be momentarily regrouping. Maybe you have too much on your mind and you forget to say the magic word. But the life of a trial lawyer is hard and the record on appeal is not always exactly to the appellate attorney’s standards. To that, appellate attorneys, I say “stop complaining.”
Appellate attorneys need to start being a bigger part of the solution and arguing that a matter can be preserved for review even if the word “objection” was not uttered. If the record has any argument whatsoever on the issue, call it preserved and argue as such. Maybe you need to add an in-the-alternative argument to be safe. But stop giving in so easily and stop blaming trial lawyers.
~David
