Lamson, Dugan and Murray, LLP, Attorneys at Law

Losing the Battle Before It Has Even Begun: Preserving Your Appellate Record

Posted in Appellate Work

Today, in its only published opinion (a 35-pager to boot), the Nebraska Court of Appeals reminded attorneys of the importance of preserving your trial court record for appellate review.  That constitutional argument, no matter how brilliant, will mean nothing unless you raise it at the trial court level, and give the trial court an opportunity to pass judgment on it. Also, if evidence is excluded, and you believe the exclusion to be error, you must make an offer of proof to preserve the issue. Otherwise, the appellate court has no way to assess the merits of the evidentiary dispute: “Without knowing the specific contents of the complete recording, including the exact language used by Epperson or the tone of his voice, we simply cannot say whether the district court erred in sustaining the State’s objection.” State v. Heng, 25 Neb.App. 317, 337 (December 5, 2017).

Getting an appellate court to reverse a decision of the lower courts is hard enough. If you fail to preserve your appellate record, however, you will have lost the battle before it has even begun.

You can find the opinion at https://supremecourt.nebraska.gov/courts/court-appeals/opinions.

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