Preserving evidentiary errors

At trial, a court may err in admitting evidence or excluding it. If the error does not affect a party’s substantial right, the error will be deemed harmless. See La. Code Evid. art. 103(A) (“Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected ....”).

When the error is one admitting evidence, the party alleging the error must make a timely objection; otherwise the error may not be reviewable on appeal. See La. Code Evid. art. 103(A)(1). In a jury trial, if the evidence is admissible as to one party or for one purpose, but inadmissible as to another party or for another purpose, the objecting party must request a limiting instruction; otherwise failure to give the limiting instruction cannot be raised on appeal. See La. Code Evid. art. 105. These rules are expressions of the basic principle governing preservation of error, discussed in this earlier post.

When evidence is not relevant to an issue raised in the pleadings, failure to object on grounds of irrelevance carries another hazard: expansion of the pleadings. Under La. Code Evid. art. 1154, when issues not raised in the pleadings are tried by the implied consent of the parties (i.e. by failure to object), they are treated as if they had been raised in the pleadings, and the court may allow amendment of the pleadings to conform to the evidence.

When the error is one excluding evidence, the party offering the evidence must make its substance known to the court. See La. Code Evid. art. 103(A)(2). The procedure for doing this is spelled out in La. Code Civ. P. art. 1636. Article 1636(A) requires the judge either to let the offering party make a statement setting forth the nature of the evidence or to make a complete record of it; the latter is often referred to as a proffer. Id. art. 1636(A). The proffer may be made in open court, on the record, and outside the jury’s presence; or it can be made by deposition. Id. art. 1636(B). If the court allows the offering party to make a proffer, it must allow other parties to make a counter-proffer. See id. art. 1636(D).

The reason for requiring a proffer was succinctly stated by the Louisiana Supreme Court in McLean v. Hunter, 495 So. 2d 1298, 1305 (La. 1986):

The very purpose of requiring a proffer is to preserve excluded testimony so that the testimony (whatever its nature) is available for appellate review. Without a proffer, appellate courts have no way of ascertaining the nature of the excluded testimony.

One other point on exclusion of evidence bears mentioning: the trial court must state the reason for its ruling that the evidence is inadmissible. Once the trial court does so, the ruling is “reviewable on appeal without the necessity of further formality.” See La. Code Civ. P. art. 1636(C). If the trial court fails to state the reason for its ruling, the party offering the evidence should object to the trial court’s failure to do so. Otherwise, an appellate court, drawing a negative implication from art. 1636(C), may conclude that the ruling is not reviewable.


Preserving errors in jury selection

In the last post, we looked at errors in granting or denying a jury trial. Today we will look at preserving errors in jury selection.

Most of us are familiar with the jury-selection process. A group of prospective jurors is sworn to answer questions truthfully. Then the judge and the parties’ lawyers ask the prospective jurors questions about their qualifications and ability to serve on the jury and about their possible biases. After they are questioned, the judge and the lawyers convene outside the jury’s hearing to decide which prospective jurors to exclude. A juror may be challenged for cause, for one of the reasons listed in La. Code Civ. P. art. 1765. If the court denies the challenge for cause, one or the other party may exercise a peremptory challenge to exclude the juror. The process continues until the parties have run out of peremptory challenges and the requisite number of jurors has survived any challenges. See La. Code Civ. P. arts. 1762, 1763, and 1766.

A party who fails to challenge a particular juror for cause at trial cannot argue on appeal that the particular juror should have been excused for cause. Nichols v. U.S. Rentals, Inc., 556 So. 2d 600, 607 (La. App. 5 Cir. 1990); Dawson v. Mazda Motors of Am., Inc., 517 So. 2d 283 (La. App. 1 Cir. 1987).

Ordinarily a party need not give any reason for exercising a peremptory challenge. But under the U.S. Supreme Court’s decisions in Batson v. Kentucky and Edmonson v. Leesville Concrete Co., a party may not use peremptory challenges to exclude prospective jurors because of their race. In the criminal arena, the Louisiana Supreme Court has held that, to preserve the complaint of the prosecutor’s Batson violation, the defense must make an objection before the entire jury panel is sworn. State v. Williams, 524 So. 2d 746 (La. 1988). The court’s reasoning in Williams suggests that the same rule would apply in civil cases. The ruling on the Batson objection must be made when the trial judge can correct the error. Id. at 746. This purpose is defeated when the objection and ruling are deferred until after trial. See id. at 747 n. 4. 

Of course, a party who fails to make a Batson objection at trial cannot raise the issue for the first time on appeal. See State v. Wilson, 524 So. 2d 1251, 1252 (La. App. 3 Cir. 1988); State v. President, 715 So. 2d 745, 753–54 (La. App. 3 Cir. 1998). Likewise, a party who raises a Batson objection but later acquiesces in the composition of the jury may be held to have waived the Batson issue for appeal. See Schexnayder v. Mathews, 898 So. 2d 616, 618 (La. App. 3 Cir. 2005).


Erroneous denial of a jury trial? Seek a writ.

In the last post, we saw that a party aggrieved by the erroneous granting of a jury trial must seek immediate appellate review by applying for a supervisory writ; otherwise the court of appeal will deem the issue waived. Does the same rule apply to the erroneous denial of a jury trial? You bet it does. The cases so holding are legion. Here are just a few:

A similar rule has been applied when a party, following a bench trial, complained on appeal that the case should have been reassigned to a different judge. In Powell v. Powell, 684 So. 2d 1084 (La. App. 2 Cir. 1996), the plaintiff argued that the trial court erred in failing to reassign a custody-modification matter to the judge who rendered the original custody order. The court of appeal found the scenario

akin to that of a litigant who fails to immediately appeal or seek supervisory writs from the trial courts disposition of a request for jury trial. In such situations, absent compelling circumstances, the litigant will be deemed to have waived the right to appeal that issue after a trial on the merits. [Id. at 1086.]

The court refused to allow the plaintiff “to abide by the trial court's ruling, try the case before that particular trial judge and then, after an adverse judgment, complain that the case should have been tried before a different judge.” Id. The court concluded that a party seeking appellate review of an order like this must do so before the hearing. Id. 


Error in granting a jury trial? Seek a writ.

Let’s say the trial court denies your motion to strike a jury. Can you save this issue for appeal after final judgment? Probably not. Louisiana caselaw consistently holds that a litigant aggrieved by such a ruling must apply for a supervisory writ so that the issue can be reviewed and decided before trial. Failure to apply for a supervisory writ will be deemed a waiver of this issue on appeal. Two considerations are behind these rulings: judicial economy and avoidance of sandbagging.

A leading case on this point is Windham v. Security Insurance Co. of Hartford, 337 So. 2d 577 (La. App. 4 Cir. 1976). A defendant in Windham moved to recall an order granting a jury trial on several grounds. The trial court denied the motion, the case was tried before a jury, and the result was a judgment on a verdict in the plaintiff’s favor. On appeal, the defendant argued that the trial court erred in allowing the case to be tried by a jury. The court of appeal, citing “the interest of judicial economy and fairness,” held that the defendant waived its right to complain of this error by failing to seek immediate appellate review:

In the interest of judicial economy and fairness, we cannot allow the appellant to abide by the judgment dismissing the motion, try the case to the jury and then, after an adverse verdict and judgment, complain it should not have been tried to a jury. If the bank wished to complain about the ruling allowing jury trial, it should have done so prior to trial either by appeal or by an application for writs. Accordingly, we hold appellant has either acquiesced in that ruling or has effectively waived its right to so complain. [Id. at 579.]

Numerous cases have since followed Windham. A good example is Turner v. Regional Transit Authority, 498 So. 2d 777 (La. App. 4 Cir. 1986). In Turner, the court of appeal agreed that the trial court was “clearly wrong” in allowing the case to be tried by jury. Id. at 779. Nevertheless, the court of appeal held that the complaining party waived this issue by failing to apply for a supervisory writ:

Although the Trial Court was clearly wrong, when as in this case, there is ample time to apply for writs of review, we will not vacate the judgment and remand for a new trial. RTA declined to pursue the matter after the Trial Court erred in its ruling. If RTA wished to complain, it should have done so prior to trial either by appeal or by an application for writs. Windham v. Security Insurance Co. of Hartford, 337 So.2d 577 (La.App. 4th Cir. 1976). Therefore, we hold that when RTA did not avail itself of the right to seek supervisory writs, it waived its right to complain of the denial of its motion to strike the jury. [498 So. 2d at 779.]

The court went on to suggest that to entertain this issue on appeal would have countenanced sandbagging:

We cannot allow RTA to try the case to the jury and then after an adverse verdict and judgment, complain it should not have been tried to a jury. If RTA had been satisfied with the jury verdict, presumably it would not have raised the jury trial issue on appeal. RTA simply cannot sit and wait and hope for a favorable jury verdict, knowing that if the verdict is unfavorable, it will have an opportunity to have it nullified on appeal. [Id.]

See also Eddy v. Litton, 586 So. 2d 670, 672–73 (La. App. 2 Cir. 1991) (“A litigant in a civil case, who, absent compelling circumstances, fails to immediately appeal or seek supervisory writs from the trial court's disposition of a request for jury trial, will be deemed to have waived the right to appeal that issue after a trial on the merits.”).

Is there an exception to this rule? Perhaps. The Turner court noted that the complaining party had “ample time” to apply for a supervisory writ. In a similar vein, the Eddy court noted the absence of “compelling circumstances” to excuse the complaining party’s failure to apply for a supervisory writ. Nevertheless, both cases teach that, if it is at all possible to apply for a supervisory writ erroneously granting a jury trial, the aggrieved party must apply for the writ. Otherwise, the court of appeal will deem this error waived.

(Note that, when these cases were decided, orders like these could either be appealed or be the subject of a supervisory-writ application. See Eddy, 586 So. 2d at 673. Today, because of a 2005 amendment to La. Code Civ. P. art. 2083, an application for a supervisory writ is the only procedure available to seek review of a judgment erroneously granting or denying a jury trial.)


Preserving objections to expert testimony

To be admissible, expert testimony must be reliable under the standards first articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and adopted by the Louisiana Supreme Court in State v. Foret, 628 So. 2d 1116 (La. 1993). Code of Civil Procedure art. 1425(F) provides a detailed procedure for bringing motions in limine to exclude an expert’s testimony under Daubert. Article 1425(F)(1) begins with permissive language rather than mandatory language: “Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable” under the Code of Evidence. Query: To challenge an expert under Daubert, must a party file and pursue a motion under art. 1425(F), or may the challenging party reserve the Daubert objection for trial?

At least three Louisiana courts of appeal have suggested that the challenging party must bring the Daubert challenge by pre-trial motion. To my knowledge, the first court to do so in a civil case was the Louisiana Fourth Circuit in Brown v. Schwegmann, 958 So. 2d 721 (La. App. 4 Cir. 2007).

The defendant-appellant in Brown argued on appeal that the plaintiff’s expert on damages used a deficient methodology in his calculations. The appellant’s main problem was failure to object to the expert’s testimony at trial. But the Fourth Circuit also noted that the appellant “failed to move for a Daubert hearing as to the admissibility of [the expert’s] testimony prior to trial.” Id. at 724. The court held that the appellant failed to preserve his Daubert challenge for two reasons. The first was his failure to object at trial. The second was his failure to file a pre-trial Daubert motion. “[W]hen the objecting party fails to request a Daubert hearing, objections to the admissibility of an expert witness’s testimony under Daubert are not preserved for appeal.” Id.

Since Brown was decided, two more Louisiana courts of appeal in civil cases have followed its pronouncement concerning the necessity of a pre-trial hearing to preserve a Daubert challenge for appeal. See Harris v. State, Dept. of Transp. & Dev., 997 So. 2d 849, 868 (La. App. 1 Cir. 2008), and Wilczewski v. Brookshire Grocery Store, 2 So. 3d 1214, 1223–24 (La. App. 3 Cir. 2009).

These decisions appear to illustrate a more general principle: when the Code of Civil Procedure or other legislation establishes a specific procedure for obtaining a particular ruling from a trial court, litigants must follow that procedure to preserve the issue for appeal. This principle accords with the definition of preservation of error that we saw in the first post of this series: that preservation of error requires “the taking of all steps necessary under the rules of procedure ... in bringing an improper act or statement to the trial court’s attention ....” Black's Law Dictionary 1375 (Bryan A. Garner, ed., 10th ed.,Thomson Reuters 2014).

This analysis raises another question: do Brown and similar cases apply to an argument that a witness is not qualified as an expert? Whether a witness qualifies as an expert is a distinct question from whether the witness’s opinions are reliable under Daubert. See Cheairs v. State, Dept. of Transp. & Dev., 861 So. 2d 536, 542–43 (La. 2003)Brown and the cases following it were concerned with Daubert challenges, not challenges to the witnesses’ qualifications as experts. Yet the legislation on which they are based, La. Code Civ. P. art. 1425(F), applies to both the witness’s qualification as an expert and the reliability of the witness’s opinions under Daubert.

I don’t know the answer to this question. Traditionally, the ruling on a witness’s qualification as an expert does not occur until trial, and only after the proponent of the witness’s testimony has elicited testimony establishing the witness’s qualifications.

Usually, this question is moot because a motion in limine to exclude expert testimony usually includes an attack on the witness’s qualifications if a credible attack can be made. My suggestion to anyone seeking to exclude purported expert testimony for any reason is to file a motion under art. 1425(F) and to include in the motion all arguments against admissibility of the purported expert’s opinions.


Preserving objections to summary-judgment evidence

Louisiana appellate courts review summary judgments de novo, applying the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of LSU, 591 So. 2d 342, 345 (La. 1991). Based on this standard of review, one might think that an appeal from a summary judgment is a total do-over of the district court’s hearing of the motion. That thought would be a mistake. The evidentiary foundation for any argument supporting or opposing the motion must be built in the trial court. Objections to an opponent’s evidence must first be made in the trial court.

Recent amendments to La. Code Civ. P. art. 966 have established specific procedures for admitting and for objecting to evidence offered for or against a summary-judgment motion. Under paragraph (F)(2), evidence attached to the motion or to the opposing memorandum is deemed admitted unless excluded in response to an objection made in accordance with paragraph (F)(3). Paragraph (F)(3), in turn, allows the objection to be made either in a memorandum or a written motion to strike, stating the specific grounds for the objection. The written objection must be served on opposing counsel according to La. Code Civ. P. art. 1313 (that is, by mail or e-mail) within the time specified by La. Dist. Ct. R. 9.9. This means that objections to the mover’s evidence must be served at least eight calendar days before the hearing, and any objections to the opposing party’s evidence must be served before 4:00 p.m. two working days before the hearing (so as to allow at least one full working day between service and the hearing).

I have not seen any caselaw interpreting these relatively new provisions. But the language of art. 966(F) seems straightforward and direct: the evidence is admitted unless an objection is made according to paragraph (F)(3). It follows that failure to object in the manner dictated by paragraph (F)(3) constitutes waiver of the objection.

Besides making your objections properly according to art. 966(F), make sure the judge rules on any properly made objections. Remember our mantra: without a ruling by the trial court, there is nothing for the appellate court to review.


Preserving constitutional challenges

Before leaving the topic of preserving claims and defenses, let’s look at something that can be part of a claim or a defense: an argument that a law is unconstitutional.

The general rule in Louisiana is that litigants must first raise constitutional attacks in the trial court, not the appellate court. The constitutional challenge must be specially pleaded, and the grounds for the claim must be particularized. Mosing v. Domas, 830 So. 2d 967, 975 (La. 2002). “Specially pleaded” means that the challenge must be stated in a pleading, that is, in a petition, an answer, an exception, or a motion. Merely raising the argument in a brief or memorandum is insufficient. Becnel v. Lafayette Ins. Co., 773 So. 2d 247, 255 (La. App. 4 Cir. 2000)Allen v. Carollo, 674 So. 2d 283, 290 (La. App. 1 Cir. 1996).

The Louisiana Supreme Court has recognized four exceptions to this general rule, three of which can apply in a civil case: (1) when a statute attempts to limit the constitutional power of the courts to review cases; (2) when the statute has been declared unconstitutional in another case; and (3) when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court. Unwired Telecom v. Parish of Calcasieu, 903 So. 2d 392, 399 n. 5 (La. 2005)Mosing v. Domas, 830 So. 2d at 975 n. 2.


Preserving affirmative defenses

As we saw in an earlier post, an affirmative defense “raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975).

Preserving an affirmative defense is more of a process than a series of a few discrete steps. Initially, you must plead the defense in your answer to the plaintiff’s petition. See La. Code Civ. P. art. 1005. But you must not stop at merely pleading the defense: you must obtain a decision, either by summary judgment or at the trial of the case. If the latter, you must offer evidence at trial to prove the defense and insist that the judge or jury make a specific finding of fact on the defense. If the case is tried by jury, you must request the appropriate jury instructions and ask for the defense to be included on the verdict form.


Preserving peremptory exceptions

The peremptory exception is a means of defense, other than a denial or avoidance of the demand, to dismiss or defeat the demand. See La. Code Civ. P. art. 921. Its function is to have the plaintiff’s action declared legally nonexistent or barred by effect of law. Id. art. 923. The defenses that may be raised through the peremptory exception include, but are not limited to, prescription (statute of limitations), peremption (statute of repose), res judicata, nonjoinder of a necessary or indispensable party, no cause of action, no right of action, and discharge in bankruptcy. Id. art. 927(A).

The peremptory exception is probably the easiest defense to preserve. Except for prescription, the defenses listed in art. 927 may be noticed by either the trial or the appellate court on its own motion. La. Code Civ. P. art. 927(B). Unlike the declinatory and dilatory exception, which must be pleaded at the outset of the case, the peremptory exception may be pleaded at any stage of the proceeding in the trial court before submission of the case for a decision. Id. art. 928(B). In fact, La. Code Civ. P. art. 929(B) suggests that it may even be pleaded after trial.

The peremptory exception may even be pleaded for the first time in the court of appeal, if pleaded before submission of the case for a decision. Id. art. 2163. But I would caution against saving the exception for the appeal. Article 2163 says that the appellate court “may consider the peremptory exception filed for the first time in that court ....” (Emphasis added.) That word may means that the appellate court has discretion to either consider or not consider the peremptory exception pleaded for the first time in that court. Seee.g., Sowers v. Dixie Shell Homes of Am., 762 So. 2d 186, 189 (La. App. 2 Cir. 2000)Fontenot v. Chapman, 377 So. 2d 492, 494 (La. App. 3 Cir. 1979). So if you save the peremptory exception for the appeal, you are at the appellate court’s mercy. If you plead the exception timely in the trial court, the trial court must consider it. See La. Code Civ. P. art. 929.

There are only two things you need do to preserve a peremptory exception: (1) plead it, and (2) seek a hearing and decision on the exception.

To plead the exception, you must file a formal pleading raising the exception. Merely arguing the exception in a brief or in open court is insufficient, because neither a brief nor an oral argument is a pleading. Smith v. Jones, 504 So. 2d 570, 573 (La. App. 3 Cir. 1987)see also La. Code Civ. P. art. 852 (pleadings consist of petitions, exceptions, written motions, and answers).

You must also seek a hearing and decision on the exception; otherwise the appellate court will deem the exception abandoned or waived. See, e.g., Williams v. Vidrine, 330 So. 2d 396, 396–97 (La. App. 3 Cir. 1976)Shear v. Shear, 695 So. 2d 1026, 1030–31 (La. App. 5 Cir. 1997).