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Striking a Balance to Win: Balancing the Need to Win the Trial with the Need to Preserve the Record on Appeal

Trial Lawyers

All trial lawyers begin a case with one goal in mind — win the trial. Sometimes the quest for success at trial, however, comes at the expense of preserving the record for appeal. Failing to preserve the record can be fatal to the ultimate outcome of the case. Even if you win the trial, if you have not adequately preserved the record on appeal, you may lose the appeal. Thus, your client’s case is ultimately lost.

“Experienced trial counsel — who are quite naturally focused on the immediate concern of a favorable verdict — sometimes overlook aspects of making the record, and they allow what would otherwise be a powerful issue on appeal go by the wayside.”1 They often do not realize that preserving the record can actually help them win at trial by making clear to the trial court what the right ruling must be.2

On the other hand, some trial lawyers adopt a strategy that is principally directed to protecting the record for appeal but pays little attention to the effect of an objection on the jury.3

Ever fearful of failing to preserve evidentiary error for appellate court consideration, the lawyer’s mission is to make sure that the court reporter has recorded his or her objection to any judicial blunder, mistake or impropriety that might conceivably bring relief. But even where objections have been properly preserved, the chances of appellate relief are — as the old joke goes — two: slim and none.4

Thus, trial lawyers must strike a balance between the need to win the trial and the need to preserve the record for appeal. Most lawyers are well aware that a case is not over even though the trial has concluded. Absent a settlement, the case may likely be appealed. However, in the absence of fundamental error,5 a reversal will not be obtained nor a win preserved unless the error has been brought to the trial court’s attention and preserved for appeal. The function of appellate courts is error correcting: To review errors allegedly committed by the trial court, not to entertain issues that the complaining party could have and should have presented below, but did not.6

Preserving the record for appeal should be on the mind of trial lawyers at all stages of the proceeding, just as much as the desire to win the trial. This article, however, does not address how or when to preserve error in the record for appeal, as this topic has been fully addressed in previous articles.7 Instead, this article addresses five factors that trial counsel should keep in mind to balance winning the trial and preserving the record. Finding the appropriate balance involves weighing fundamental tactical and legal issues. While counsel may ultimately decide to waive an issue as a trial strategy, he or she should do it knowingly and intelligently, not accidentally.8

1) Preparation

Preparation is the most important aspect of winning a case, and it is a critical component to effectively and efficiently preserving the record for appeal. Thorough knowledge of the facts of the case and the law applicable to every issue in the case will enable trial counsel to anticipate what will happen at all stages of the trial. Knowledge of the applicable law does not stop at the law relating to the causes of action alleged; it also involves being totally familiar with the law relating to smaller technical issues that may arise, particularly evidentiary issues.

Preparation is also the key to adopting an effective trial strategy. Trial counsel who have thoroughly analyzed the goals they need to achieve will be able to respond quickly when faced with the question of whether preserving a particular error will affect counsel’s chances of winning the case before the judge or jury. During the fast-paced setting of a trial, lawyers do not have the luxury of thinking through each and every issue that arises. The more prepared the lawyer is, however, the more quickly the right decision can be made.

Trial counsel who is ready for anything and has thought ahead can strike the balance between preserving the record and waiving a potential appellate issue to win the trial or, at a minimum, win favor with the jury. With proper preparation, counsel will be ready when the question arises of whether to object. The issue will be well thought out, and the reaction will be appropriate. Counsel will be intimately familiar with what grounds are critical to raise and what would never be a basis for appellate relief.

2) Know Your Standards of Review

Trial lawyers often leave appellate issues, such as standards of review, to appellate lawyers. Why would trial counsel need to be familiar with standards of review? The thinking goes: As long as trial counsel is focused on introducing or excluding evidence where necessary, making necessary objections, and raising the arguments required to win the trial, appellate lawyers should worry about winning the issue on appeal.

To the contrary, familiarity with the standards of review applicable to issues that arise in trial can greatly assist trial counsel in striking the proper balance between winning the trial and preserving the record for appeal. The criteria by which the appellate court will evaluate an issue can guide counsel in ensuring that the record is properly developed. If the record is not preserved in a way amenable to proving the error under the applicable standard of review, you lose. It can also guide the lawyer’s decision on whether the issue should be preserved when the issue is of questionable importance or relevance and has the potential to adversely affect the trial.

The correct standard of review is determined primarily by the type of ruling under review.9 Trial court rulings can be generally classified within three types: 1) rulings of law, 2) discretionary rulings, and 3) rulings of fact.10

Rulings involving a pure matter of law, such as rulings involving the sufficiency of a complaint, a motion to dismiss, a motion for summary judgment, or the interpretation of a contract, are reviewed de novo. De novo review means the appellate court is free to decide the issue of law without deference to the trial judge, as if the appellate court had been deciding the issue in the first instance.11 If the issue being raised is one subject to de novo review, trial counsel should ensure that the record is clearly developed such that the appellate court reviewing the issue can evaluate the evidence as if it were the first court to do so. Make sure the legal argument is well thought out and succinctly presented so that the reviewing appellate court can perceive the error when reviewing the record anew. Rarely, if ever, should an error of law not be preserved for review, regardless of the trial circumstances.

Rulings involving the discretion of the trial court will not be reversed unless counsel can show that the trial court abused its discretion.12 Under the “abuse of discretion” standard, a trial court’s ruling will be upheld unless the judicial action is arbitrary, fanciful, or unreasonable, and discretion is abused only where no reasonable person would take the view adopted by the trial court.13

The appellate court’s review of a jury verdict or a trial judge’s findings of fact is to determine whether the verdict or finding is supported by “competent, substantial evidence.”14 Competent, substantial evidence is tantamount to legally sufficient evidence.15 It is such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.16

Most practitioners consider the latter standards of review much more difficult to meet than the first one.17 Knowing the difficulty of proving error on appeal or the likelihood of success on appeal under a particular standard of review is a significant component to balancing the need to preserve the record and the need to win the trial.

3) Be Careful What You Ask For — You Just Might Get It

Effective trial advocacy often requires trial counsel to make an instant decision as to whether to seek a ruling that, at that particular time, could help win the trial. In hindsight, however, the relief requested is sometimes not the most appropriate relief that was available. As such, counsel should be careful what they ask for — they should consider not only what effect the ruling will instantly have on the trial, but also the effect a ruling would have on appeal.

Under the invited error doctrine, when a litigant requests and receives a favorable ruling, he or she cannot later complain on appeal that the trial court erred in acceding his or her request.18 Similarly, a party cannot invite error or purposefully make error at trial and then take advantage of the error on appeal.

For example, in Muina v. Canning, 717 So. 2d 550 (Fla. 1st DCA 1998), plaintiff’s trial counsel stated in closing that the document at issue should be interpreted just as it is written. When the trial court accepted plaintiff’s argument and interpreted the document as written, plaintiff objected on appeal. On appeal, the district court recognized that plaintiff had shown that the trial court’s interpretation of the document was reversible error, but it nonetheless held that plaintiff could not complain about the error on appeal since the trial court had granted the relief specifically requested by the plaintiff.

Invited error can occur at all stages of the trial, and it often is the result of a compromise being made for the benefit of the trial without thought being given to the effect the compromise has on appeal. Courts have held that parties were barred from raising a potentially meritorious issue on appeal because they stipulated to it pretrial,19 raised it in a motion for summary judgment,20 compromised the relief available to the plaintiff during trial,21 or raised it after the close of the evidence or post-trial.22 In most of these circumstances, the error could have been avoided had counsel thought through the effect the requested relief would have on appeal.

On the other hand, when evidence is admitted over a proper objection (thus, preserving the error), counsel should consider whether to then introduce other evidence to minimize the prejudicial impact of the wrongly admitted evidence. This involves walking a fine line between mitigating the potentially prejudicial impact of the evidence to your case and actually waiving the error in your effort to eliminate the prejudice.

In Sheffield v. Superior Insurance Co., 800 So. 2d 197 (Fla. 2001), the Florida Supreme Court held that the concept of invited error does not apply where the trial court makes an unequivocal ruling admitting evidence over the movant’s objection and the movant subsequently introduces the evidence in an attempt to minimize the prejudicial impact of the evidence. “[O]nce the party is faced with the knowledge that the jury will hear the evidence, it is legitimate trial strategy for a party to introduce the evidence at trial in an attempt to mitigate the harm and diffuse the prejudicial impact of the evidence.”23 Trial counsel can successfully overcome the balance between winning the trial and preserving the record so long as counsel obtains an unequivocal ruling admitting evidence over objection.

Notably, the Florida Supreme Court recently approved the legislature’s amendment to F.S. §90.104(1)(b), which expressly adopted the nonwaiver rule.24 The amendment eliminates the need for a trial objection to preserve an evidentiary issue for appeal when the trial judge has made a definitive ruling on the admissibility of the evidence, thus, giving counsel more flexibility in strategizing how to try their case.25

Indeed, trial counsel may now routinely use §90.104, as amended, as a component of their trial strategy by filing motions in limine to exclude evidence at the outset of trial where they otherwise would not have. For example, prior to the amendment to §90.104, counsel may have decided that it was more beneficial to the case to introduce potentially prejudicial evidence during their case in chief because renewing their objection to the evidence during the trial in front of the jury would run the risk of emphasizing the potentially prejudicial nature of the evidence to the jury. Now, counsel can file a motion to exclude the evidence even with the knowledge that the motion will likely be denied. The issue will be preserved for appeal without having to renew the objection before the jury. At least in this respect, the court has made the balance of preserving the record and winning the trial a little easier.

4) Know How Your Objection Will Play Out on Appeal

Also important to balancing the need to win the case and the need to preserve the record on appeal is knowing how your objection or your attempt to preserve the record will play out on appeal. Knowing the relief available on appeal can guide your decision on whether the objection should be raised at trial.

Appellate courts not only consider whether the error was preserved, but whether the preserved error was harmful.26 The courts will only remedy error that has a probable effect on the outcome of the case.27 Therefore, considering whether the ruling will be consequential to the outcome of the case and the likely remedy on appeal may guide the trial lawyer in striking a balance when faced with an error and a potential adverse effect on the trial.

“The jury often views an attorney who makes too many objections either as an obstructionist or as one who wishes to prevent the jury from hearing the truth. Furthermore, overruled objections are often harmful to the case. The jury may give admitted evidence more weight than it otherwise would simply because the objection drew attention to the evidence.”28 Finally, objections may backfire. General objections such as “lack of foundation” or “form of the question” may give the opposing party the chance to elicit testimony that is more persuasive than the witness would have given after the original question.29 Trial counsel, therefore, should make objections only when the issue is truly important to the objecting party’s case and cannot be readily fixed by the nonmoving party.

For example, suppose you are in the midst of a hotly contested trial and you can tell that the jury and judge are getting irritated with you because you repeatedly jump up to object to your opposing counsel’s legitimately objectionable behavior. Although your objections are legally proper, you are quickly being viewed unfavorably by the jury. Do you keep objecting? If the error could be consequential to your case, of course, you do. However, if it is an issue of no real importance to the outcome of the case, then counsel may want to intelligently let that error go and allow the trial to proceed. To mitigate the prejudice arising from opposing counsel’s conduct, you may also tell the court that your client is being prejudiced by your having to repeatedly object to opposing counsel’s improper questions and request a standing objection.

Of course, all legitimate errors should be preserved for appeal. Even small errors may lead to success on appeal if the cumulative effect of such errors requires reversal of the case, and no one can predict how an appellate court will view a particular error. Nonetheless, considering the relief available on appeal will assist in making an informed decision. This factor plays strongly with factors one and two above. If trial counsel can anticipate what evidence opposing counsel is eliciting and why, and is cognizant of the applicable standard of review, trial counsel can intelligently determine whether to raise an objection or to waive the issue for appeal.

5) Once the Decision Is Made to Preserve the Record, Make No Compromises

“Objections and offers of proof should be articulated, not as the first step in a precarious journey through an appellate quagmire, but as a persuasive speech to a fact finder about how specific evidence substantiates counsel’s theory and negates his or her opponent’s theory of the case.”30

Once the decision is made that the balance weighs in favor of preserving the record, preserve the record as carefully as possible. Do not compromise your objection for the benefit of the jury or the judge. For example, do not waive or concede an issue in an attempt to obtain a favorable ruling on another issue unless such waiver is done intelligently with due regard for the success of the issue on appeal. Similarly, do not withdraw your objection or request or concede an issue simply because it has been denied. Also, specifically request the relief that you seek as a result of the error. If the specific relief sought on appeal was not requested below for the trial court to consider, the appellate court will probably not grant it.

Appellate review is confined to issues that were preserved with a “sufficiently specific objection” below.31 A general objection probably does not preserve the error for appeal,32 but rather the precise argument raised on appeal must have been raised below.33 Indeed, appellate courts frequently admonish lawyers for saying too little, instead of too much.34 Counsel should not assume that the court is familiar with the theory and should err on the side of a full explanation.35

Written advocacy is important here as well. If the decision is made that the error could be harmful and the record should be preserved, do it in a way that could change the judge’s mind. Take time to put together a succinctly stated argument supported by the law.

Finally, if the court’s ruling excludes evidence that is relevant to your case, do not hesitate to make a full and complete proffer of the evidence. This includes actually offering evidence in support of your position, not just telling the judge what the evidence would have been. If you compromise on your proffer of evidence, your error may not be properly preserved for appeal and your efforts will have been in vain.


While this article is not intended to minimize the importance of preserving error for appeal, one cannot ignore the practical reality that preserving each and every error in the record may interfere with the strategic advocacy necessary to win the trial. Nonetheless, if error is not preserved, it is lost forever. A balance, therefore, must be struck between preserving absolutely every error that arises at trial no matter how minimal and effective advocacy during trial. These factors can assist trial counsel in swaying the balance to their favor, using preservation techniques to win the case — at trial and on appeal. q

1 Thom Hudson, Preserving the Appellate Record: Five Common Traps to Avoid, 40 Ariz. Attorney 32, 32 (Mar. 2004).

2 Gary L. Sasso, Preservation of the Record — An Exercise in Trial Advocacy, Not Just Appellate Necessity, The Appellate Advocate 7 (2d Issue 2003).

3 Edward D. Ohlbaum, Jacob’s Voice, Esau’s Hands: Evidence-speak for Trial Lawyers, 31 Stet. L. Rev. 7, 12-13 (Fall 2001), available at

4 Id.
5 Fundamental error is error which goes to the foundation of the case or the merits of a cause of action. Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970). It is not wise to rely on this form of unpreserved relief. Fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application. Farina v. State, 937 So. 2d 612, 629 (Fla. 2006).

6 Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 825 (Fla. 2005); Herskovitz v. Herskovitz, 910 So. 2d 366 (Fla. 5th D.C.A. 2005).

7 See, e.g., Jack R. Reiter, Principles and Pitfalls of Preservation of Error, 78 Fla. B.J. 32 (Nov. 2004); Sylvia H. Walbolt & Susan L. Landy, Pointers on Preserving the Record, 25 Litigation 31 (Winter 1999).

8 Barbara A. Green, Preserving Trial Error For Appeal, Masters of the Courtroom Seminar Before the Dade County Trial Lawyer’s Ass’n (Oct. 24, 1996), available at
9 Philip J. Padovano, Florida Appellate Practice §9.1 (2006 ed.).

10 Id.
11 Id. §9.4.

12 Id. §9.5.

13 Reynolds v. State, 924 So. 2d 1128, 1159 (Fla. 2006) (citations omitted); see also Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980) (recognizing that the appellate court must recognize the superior vantage point of the trial judge and should apply the reasonableness test to determine whether trial judge abused his or her discretion).

14 Raymond T. Elligett, Jr. & John M. Scheb, Florida Appellate Practice & Advocacy §9.3 (4th ed. 2005).

15 Almeida v. State, 748 So. 2d 922 (Fla. 1999).

16 Duval Utility Co. v. Fla. Public Service Comm’n, 380 So. 2d 1028 (Fla. 1980); State Beverage Dep’t v. Ernal, Inc. , 115 So. 2d 566 (Fla. 3d D.C.A. 1959).

17 Elligett & Scheb, Florida Appellate Practice & Advocacy at §9.1.

18 Adams v. Shiver, 890 So. 2d 1199 (Fla. 1st D.C.A. 2005).

19 Martel v. Carlson, 118 So. 2d 592 (Fla. 3d D.C.A. 1960) (holding that counsel could not argue that cases should not have been tried together when counsel stipulated to consolidation prior to trial).

20 Wilmo on the Bluffs, Inc. v. CSX Transp., 559 So. 2d 294 (Fla. 1st D.C.A. 1990) (holding that a party may not specifically ask for summary judgment on grounds that there was no genuine issue of material fact and then on appeal take the position that there was a material issue of fact on the same question).

21 Held v. Held, 617 So. 2d 358 (Fla. 4th D.C.A. 1993) (holding that husband could not complain about court’s order regarding trial support when he suggested that distribution below); Mohammad v. Mohammad, 371 So. 2d 1070 (Fla. 1st D.C.A. 1979) (holding that when trial court merely accepted appellant’s offer to pay full college expenses for his two children for four years, appellant may not argue on appeal that the court erred in ordering him to do so).

22 Bryan v. Bryan, 930 So. 2d 693 (Fla. 3d D.C.A. 2006) (holding that counsel could not argue that trial court erred in adopting proposed judgment of opposing party verbatim when that party requested that the parties be permitted to submit proposed judgments); Harlan Bakeries, Inc. v. Snow, 884 So. 2d 336 (Fla. 2d D.C.A. 2004) (holding that counsel invited the error by requesting the curative instruction complained of); Arsenault v. Thomas, 104 So. 2d 120 (Fla. 3d D.C.A. 1958) (holding that defendants who had argued that any recovery should be reduced by a certain amount could not argue that the trial judge erred in not correctly applying the statute relating to reduction of damages when defendant specifically requested that relief).

23 Sheffield, 800 So. 2d at 203 (citing Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So. 2d 596 (Fla. 3d D.C.A. 2000)).

24 In re Amendments to the Florida Evidence Code — Section 90.104, 914 So. 2d 940 (Fla. 2005).

25 Fla. Stat. §90.104(1)(b) (2006) (“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).

26 Raymond T. Elligett, Jr. & Judge John M. Scheb, The Appellate Decision-making Process, 80 Fla. B.J. 45 (Apr. 2006).

27 Padovano, Florida Appellate Practice at §9.8.

28 Fred Warren Bennett, Preserving Issues for Appeal: How to Make a Record at Trial, 18 Am. J. Trial Advoc. 87, 87 (Summer 1994).
29 Id.

30 Ohlbaum, Jacob’s Voice, Esau’s Hands: Evidence-speak for Trial Lawyers, 31 Stet. L. Rev. at 13 (citation omitted).

31 Hodges v. State, 885 So. 2d 338, 358 (Fla. 2004); Clear Channel Communications, Inc. v. City of North Bay Village, 911 So. 2d 188 (Fla. 3d D.C.A. 2005); Keech v. Yousef, 815 So. 2d 718 (Fla. 5th D.C.A. 2002).

32 Minor v. State, 763 So. 2d 1169, 1171 (Fla. 4th D.C.A. 2000).

33 Martin v. State, 936 So. 2d 1190 (Fla. 1st D.C.A. 2006).

34 Ohlbaum, Jacob’s Voice, Esau’s Hands: Evidence-speak for Trial Lawyers, 31 Stet. L. Rev. at 13, n.17.

35 Id.

Christine R. Davis is an attorney with Carlton Fields, P.A., in Tallahassee, and is a member of its appellate practice and trial support group. Her practice includes all aspects of appellate litigation and trial support in state and federal court. She received her law degree, with honors, from Florida State University.

This column is submitted on behalf of the Trial Lawyers Section, Bradley E. Powers, chair, and D. Matthew Allen, editor.

Trial Lawyers