Preserving evidentiary errors
Preserving objections to jury instructions and verdict form

Preserving other errors at trial: The general rule

In our last post, we looked at preserving erroneous evidentiary rulings for appellate review. We will now turn to other errors that may occur during a trial.

The default rule for preserving an error for review is spelled out in La. Code Civ. P. art. 1635: “For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor ...,” unless the party has no opportunity to object when the order or ruling is made.  This is simply another articulation of the basic principle described in an earlier post in this series, requiring the issue to be raised properly and timely in the trial court.

I call art. 1635 a default rule because it applies to any erroneous ruling or order that a trial court may make that is not covered by a more specific error-preservation rule. The following are just a few examples of its application:

  • Trial judge’s inappropriate comments before a jury. Code of Civil Procedure art. 1791 forbids a trial judge from commenting on the facts of the case, either by commenting on or recapitulating the evidence, repeating the testimony of a witness, or giving an opinion about what has been proved, not proved, or refuted. Nevertheless, a party who fails to object to the trial judge’s improper comments cannot complain of them on appeal. The Louisiana Fourth Circuit described the reason for this rule: “A timely objection directs the court's attention to the possible prejudicial effects of the remarks and affords it the opportunity to limit the import of the comments in the minds of the jury. By failing to object at the time the remarks are made a party waives his right to later claim prejudice.” Wilson v. Virgademo, 258 So. 2d 572, 577 (La. App. 4 Cir. 1972). Other cases applying the same rule include the following:
  • Trial judge’s questioning a witness in the jury’s presence. In a jury trial, the trial court is forbidden from calling or examining witnesses unless the parties consent. See La. Code Evid. art. 614(D). But if the trial judge violates this provision, the error may not be reviewed on appeal. See Laperouse v. Barbaree, 836 So. 2d 417, 422 (La. App. 1 Cir. 2002) (“[A]lthough La. C.E. art. 614(C) authorizes a party to object to the trial court's questioning of witnesses, counsel for Mr. Barbaree did not object. The failure to object to this testimony thus precludes Mr. Barbaree from raising the issue on appeal. La. C.C.P. art. 1635 ....”).
  • Improper ex parte contacts. In Zellinger v. Amalgamated Clothing, 683 So. 2d 726 (La. App. 2 Cir. 1996), the appellant complained on appeal of an ex parte meeting between the trial judge and opposing counsel. The appellate court refused to consider this issue because of the appellant’s failure to timely object in the trial court. “Failure to object constitutes a waiver of the right to complain on appeal.” Id. at 731.
  • Inflammatory remarks by opposing counsel. In case after case, Louisiana’s appellate courts have refused to consider arguments about inflammatory, prejudicial comments by opposing counsel because the complaining party failed to object at trial. For example:
    • Plaintiffs’ counsel “made outright appeals to prejudice against defendant insurer, characterizing it as soulless and devoid of feeling, charging unfairness and oppression in its dealing with plaintiffs, and even suggesting to the jury that it could punish the insurer through its verdict.” The Louisiana Supreme Court agreed that the remarks wree improper, but determined that “failure to object to several ... statements ... constitutes a waiver of [the] right to complain of them on appeal.” Temple v. Liberty Mut. Ins. Co., 330 So. 2d 891, 894 (La. 1976).
    • In closing argument, plaintiff’s counsel remarked that “a lawyer with a briefcase can steal more money than a thousand armies with guns.... It is true because you are armed with very dangerous knowledge as to how the system works and how things can be done.... A lot of times it is done in such a way that that person being taken advantage of doesn’t even know anything.... I think in this case, quite sincerely, that Beau Brumfield took advantage of Rosemary.” The appellate court, doubting that these remarks affected the verdict, found it more important that defense counsel waived this issue by failing to object when the remarks were made. Brumfield v. Brumfield, 477 So. 2d 1161, 1169 (La. App. 1 Cir. 1985).
    • Defendant argued on appeal that plaintiffs’ counsel making an improper Golden Rule argument by asking the jurors to choose an injured family member and to put themselves in the place of that injured person. The appellate court refused to consider the argument because of the defendant’s failure to object at trial. “failure to object to alleged inflammatory statements made to the jury constitutes a waiver of the right to complain on appeal.” Reggio v. La. Gas Serv. Co., 333 So. 2d 395, 402 (La. App. 4 Cir. 1976). (The appellate court further observed, “In the absence of objection to allegedly improper questions or argument, the trial court is not afforded the opportunity to prevent or correct the alleged error.” Id. Recall the appellate courts’ distaste for sandbagging and desire to conserve judicial resources.)

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