Two opinions from the SCV’s last session help to clarify a topic near and dear to our hearts: the contemporaneous-objection rule. We’ll address one decision this week, and take up the other one shortly.

To preserve an issue for appeal, a party has to object with reasonable certainty at the time of the trial court’s ruling. Rule 5:25. Basically, he or she has to give the trial court a fair opportunity to rule intelligently on the issue, at a time when the court can still fix any mistakes.

There are plenty of good policy reasons for this rule. Some of the most frequently cited include:

  1. Protecting the trial court from appeals on undisclosed grounds. If you think back to your days in school, it would hardly be fair if a teacher failed you for giving the wrong answer to a question that he never asked. The same rule works for judges.
  2. Preventing traps on appeal. Generally speaking, you don’t get to spring things on opposing counsel for the first time on review.
  3. Avoiding unnecessary reversals.

The first two are fairness concerns, and the last is a judicial economy issue.

When we are brought in as appellate counsel, one of the first things we look at is whether the appellant’s issues were properly preserved in the trial court. When we represent the appellant and we’re worried about preservation, we also consider whether we can fix any issues with a motion to reconsider, a motion for a new trial, or a similar pleading.

After all, an objection can still be “contemporaneous” so long as it is made when a trial court is still in a position to take corrective action.

But this analysis can get very tricky when a jury is involved. After a trial court has sent an issue to the jury, is it still in a position to take corrective action on points of law for purposes of the contemporaneous-objection rule (e.g., by setting aside a verdict or ordering a new trial)?

In other words, how contemporaneous does your objection really need to be, and how much can you fix if you, as appellate counsel, show up late to the party?

We get some clarity on these questions from Nolte v. MT Technology Enterprises, LLC. The facts of the case are waaay too complicated to recite here, but I commend the case to you. It has discovery hi jinks, heavy sanctions (including a bar on cross-examining opposing witnesses?!), and loads of business guys acting badly.

Sanctions, business torts, and business jerks? Why, yes, Justice Lemons did write the opinion. Why do you ask?

Relevant for our purposes here, the trial court decided to take the question of liability away from the jury.

At the end of the trial, the court informed the lawyers of the instructions it planned to give. The defendants did not object. Then the trial court instructed the jury, and again, the defendants didn’t object. The trial court gave the jury a verdict form that did not mention liability. Once more, the defendants did not object.

In fact, they never objected at trial to the trial court’s ruling submitting only the question of damages to the jury. They did object in a post-trial motion filed 15 days after the judge instructed the jury.

The SCV held that this was not sufficient to preserve the issue for appeal. It explained that any objection to a jury instruction must be made in the trial court when the instruction is tendered.

This holding seems fair and it’s certainly  in keeping with the policies behind the contemporaneous objection rule. At the same time, as a practical matter, it will make life hard on appellate counsel trying to clean up the record for appeal. That’s frustrating but probably fair, because much as we’d like to, we shouldn’t be able to fix everything.