Preserving Appellate Error

Imagine you are standing at the lectern in the courtroom on the second floor of the Carroll Gartin Justice Building with Chief Justice Randolph saying to you, “That may be a good argument, counsel, but can you point us to where in the record that you made the argument in the trial court?” Such imagined moments are the nightmare fuel of appellate lawyers. With limited exceptions, an appellate court will not make right on appeal an issue that counsel did not ask the trial court to get right earlier. Without a good answer to Chief Justice Randolph’s question, your appeal – and your client’s case – may be sunk, potentially after years of hard-fought litigation.

This article provides some practice tips on preserving error for appeal, using the context of a jury trial as its framework. Revisiting these tips within that context is more important now than ever. With fewer jury trials, many lawyers have not honed their error-preserving skills just as many have not honed their cross-examination skills. And there are plenty of traps waiting for the unskilled and unprepared.

The full article, "Preserving Appellate Error," was published in The Mississippi Lawyer, Volume LXXI, No.3, in the Spring of 2025.