Thou shalt conserve judicial resources
Preserving claims or causes of action

The basic rule for preserving error

Preserving errors for appeal can seem complicated; it seems that every possible error a trial court can make has a corresponding procedure for preserving the error for appellate review. But in fact, this entire area of law can be summed up in just one basic two-part rule for preserving any error for appeal. Here it is:

To preserve an error for appellate review, you must:

  1. Raise the issue properly and timely in the trial court; and
  2. Obtain a ruling from the trial court.

This basic rule applies to error preservation at all stages of litigation, from pleading through discovery, motion practice, trial, and post-trial. You must raise the issue properly and timely in the trial court to avoid sandbagging and to give the trial court a fair opportunity to make the right call. You must obtain a ruling from the trial court because, without a ruling, there is nothing for the court of appeal to review.

But how does one know when and how to raise and issue in the trial court? The answer is usually found in the Code of Civil Procedure, the Code of Evidence, or other legislation; occasionally the answer is found in caselaw.


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