What does it mean to preserve issues for appeal?

An issue is "preserved" for appeal if it was properly presented to, and decided by, the trial court. This makes sense because an appeal is a review of what occurred in the trial court. If the issue was not presented in the trial court, it typically cannot be reviewed on appeal, except in criminal appeals. The trial court judge was never provided the opportunity to decide the issue in the first instance, so there is nothing to review on appeal. Issue preservation is typically handled by motion, objection, and with an offer of proof.

In civil cases (i.e., not criminal convictions) issues must be preserved in order to be argued on appeal. If an issue is not preserved in at a civil case then no matter how important it is to a litigant, or the general public, an appeal is not likely to help. There are exceptions, such as a lack of subject matter jurisdiction, but these are rare.

Issues in criminal cases receive a much more beneficial standard of review than unpreserved issues. The difference is between prejudicial error and a substantial risk of a miscarriage of justice. That difference is immense. Criminal appeals may also claim ineffective assistance of counsel, which is unavailable in civil cases.

Involving an appellate attorney at the trial court level is helpful. Appellate counsel provides a different view of the case. He can identify evidentiary issues and proposed responses before and at trial. The best place to build a strong appeal is in the trial court.

More answers to frequently ask questions about appeals are available on this website. If you have additional questions, or are ready to proceed with your appeal, call Appellate Attorney William Driscoll at 978-846-5184.