Ensuring Justice: The Essential Guide to Preservation of Error for Appeal

Strickland Webster, LLC unpacks the critical steps of preserving errors for appeal, ensuring your trial missteps are documented for a fair review. Dive into our guide for professional insights.

Overview of Preservation of Error for Appeal

Have you been charged with an offense, or are you undergoing a trial? It’s imperative to grasp the legal aspects and the necessity of preservation of error at the trial courts. An unpreserved error may not favor your appeal if you are convicted at the trial court. This critical aspect is necessary to ensure your chances of a successful appeal if you or a loved one is facing a conviction.

Hiring experienced attorneys with the understanding of preservation of error will benefit you greatly. You may have reasonable grounds for appeal but still experience dismissal of your appeal if your attorney fails to preserve errors made at the trial court timeously.

Even if you have valid grounds for an appeal, failing to preserve errors during your trial proceedings can result in the dismissal of your appeal. You certainly want to avoid finding yourself in such a fix. In this article, our experienced lawyers at Strickland Webster, LLC, with an appropriate understanding of sentencing errors and appeals, will provide you with a guide on the preservation of error for appeal and how to avoid the subtle mistakes regarding error preservation.

What Is Preservation of Error?

Proper preservation of error is the foundational step to a successful appeal. It is one of the most fundamental factors of an appellate process. For an attorney, mastering how to preserve errors at the trial court is a prerequisite to effective advocacy, especially during appeals.

Error preservation entails raising objections and presenting arguments that become part of the official trial record for the appellate court’s review. Your trial attorney must raise objections to issues timeously so the opposing counsel can respond.

A timely objection will also grant the court an avenue to address the objections and correct the issues if found erroneous. Prompt correction of errors reduces the possibility of ordering a new trial following an appeal.

The Legal Framework of Error Preservation

The concept of error preservation primarily prevents litigants from gaining an unfair advantage by introducing issues on appeal that were never raised at the trial court. When such errors are not mentioned at the trial court, it gives no room for the court to rectify them.

Appellate courts need to establish whether the error preservation rule was diligently observed.

There are three required components for the preservation of error:

  • Timely objections at the moment an error occurs

  • Providing legal grounds to support the objections

  • Ensuring the objections are specific and detailed

In the Georgia justice system, attorneys must object to an alleged error on the record at the earliest possible opportunity to preserve the error. To succeed on appeal, a preserved error must be shown to be harmful to the defendant or appellant seeking a review by the Georgia justice system.

The Purposes of Error Preservation in the Appellate Process

Error preservation serves several essential functions in the appellate process. They are:

  • Fostering Fairness: The preservation of error safeguards the principle of fairness. It prevents one party from surprising their opponent on appeal by introducing alleged errors for the first time at the appellate court.
  • Preserving Judicial Resources: Addressing errors at the trial court stage conserves judicial resources by allowing the court to rectify mistakes before they escalate to the appellate level. This, in turn, reduces the appellate court’s caseload.
  • Enhancing Judicial Decision Accuracy: When an attorney raises a contemporaneous objection, it allows the parties to refine their arguments and enhances the court’s consideration of the alleged error.

Appellate Court Perspectives on Preservation Errors


Appellate courts scrutinize preservation errors rigorously, underscoring the necessity for trial attorneys to meticulously document objections and the grounds thereof during trial. This judicial diligence ensures that every appeal rooted in such errors is grounded in a well-preserved record, allowing for a fair reassessment of the case.

Courts typically defer to the trial record; thus, any oversight in preserving an error could significantly undermine an appeal. The precision in preserving an issue for appeal is paramount, as appellate judges primarily rely on the context and clarity provided by the original trial documentation to make their decisions.


Common Mistakes and How to Avoid Them

To properly preserve errors for appeal, trial lawyers must consider what can go wrong during the trial and plan for what needs to be done to preserve errors for appellate review. There are several mistakes regarding error preservation that are usually made at the trial courts, including:

Overlooking Errors and Consequences: 

Leaving out objections, especially concerning the admission or exclusion of evidence, can result in waiving the right to object. 

For instance, an attorney cannot claim the misconduct of an opposing party’s counsel as grounds for an appeal when they did not object to that conduct at the trial court. So, when an attorney notices any errors in the trial proceedings, they should quickly draw the court’s attention to them.

Underestimating the Significance of Motions in Limine: 

A motion in limine is a good way of preserving the record for appeal/errors. Motion in limine seeks to prevent certain arguments or exclude/allow specific evidence from being presented during trial. Its purpose is to address potentially irrelevant and inadmissible evidence that can hinder justice.

When attorneys maximize motions in limine, they can avoid any potential prejudice arising from the allowance of specific evidence and arguments. However, despite being a pre-trial motion, having the court reporter transcribe the motion in limine hearing is helpful.

When a party offers evidence contrary to the trial court’s prior ruling on excluding such evidence, the opposition party must object to that evidence in order to preserve error.

The Georgia Supreme Court affirmed this in the case of Williams v. Harvey (Case No: S20G1121). The Supreme Court held that contemporaneous objection was required when the plaintiff’s lawyer violated the court’s ruling regarding the motion in limine bordering on the exclusion of arguments.

Inviting Error

An appellant cannot raise objections to errors for which they are responsible. For instance, your attorney would not be permitted to raise objections to a verdict form you submitted or their requested jury instructions at the trial courts. Recognizing and preventing self-invited errors is vital.

Strickland Webster, LLC Can Help You

Preserving critical errors that impact the outcome of a trial is paramount, and it can have a tremendous impact on the success of your appeal, even in the face of seemingly overwhelming evidence. Since the appellate court has to review the record of the trial proceedings, hiring an experienced appellate lawyer with the knowledge of preservation of errors would benefit your case.

At Strickland Webster, LLC, our appeal lawyers in Atlanta are well-equipped to represent you. We can help you build robust defense strategies for your trial while having errors adequately preserved at the trial court for potential appeals.

Contact us today to schedule a consultation.