Online CLE Protecting Your Appeal .75 Oregon Practice and Procedure credit From the Oregon State Bar CLE seminar Fundamentals of Oregon Civil Trial Procedure, presented on September 26 and 27, 2019 © 2019 The Honorable Lynn Nakamoto, The Honorable Adrienne Nelson. All rights reserved. ii Chapter 11 Protecting Your Appeal THE HONORABLE LYNN NAKAMOTO Oregon Supreme Court Salem, Oregon THE HONORABLE ADRIENNE NELSON Oregon Supreme Court Salem, Oregon Contents I. Appellate Law Matters to Trial Lawyers. 11–1 II. Preserving Issues for Appeal . .11–1 A. What Is Preservation? . 11–1 B. What Is the Rationale for the Preservation Policy? . .11–1 C. Preservation at Work: ORAP 5.45 . 11–2 D. When Is an Issue Adequately Preserved?. 11–3 E. Some Preservation Rules in Specific Settings in Civil Practice . .11–3 III. Tips for Making a Good Record in the Trial Court . 11–6 A. Understand the Challenges Facing the Trial Judge to Keep the Trial on Schedule. 11–6 B. Be Persistent but Respectful When You Need to Make Your Record . .11–7 C. Make Sure That What Happened Is on the Record . .11–8 IV. Securing Your Appeal . 11–8 A. Is There an Appealable Judgment or Order? . .11–8 B. Is There an Appealable Issue? . 11–9 C. Filing a Notice of Appeal for Your Client . .11–10 D. Taking Care of Undertakings. .11–11 E. Are You Counsel of Record on the Appeal? . .11–11 Presentation Slides: Protecting Your Appeal . .11–13 Chapter 11—Protecting Your Appeal Fundamentals of Oregon Civil Trial Procedure 11–ii Chapter 11—Protecting Your Appeal I. APPELLATE LAW MATTERS TO TRIAL LAWYERS Trial lawyers in civil litigation should be familiar with some basic appellate law to best represent their clients. One of the most important aspects of appellate law for trial lawyers to understand is the preservation of issues for appeal. As a trial lawyer, you may also have to advise your client regarding whether an intermediate ruling by the trial court can be challenged in an appellate court. And, if there is an order or judgment to be addressed in an appellate court, you may be asked to initiate that process. If that occurs, you should understand what that entails. II. PRESERVING ISSUES FOR APPEAL A. What is preservation? Basically, "preservation" refers to a prudential policy on appeal: ordinarily, a party must first raise an issue in the trial court before challenging the court's ruling concerning that issue on appeal. Peeples v. Lampert, 345 Or 209, 219, 191 P3d 637 (2008). An exception to the general preservation requirement is "plain error" review. See, e.g., State v. Reyes-Camarena, 330 Or 431, 435, 7 P3d 522 (2000) (explaining and applying plain error doctrine). In Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991), the Supreme Court stated that an appellate court may review unpreserved error as plain error only if (1) it is an error of law, (2) the error is "obvious, not reasonably in dispute," and (3) it appears "on the face of the record." The appellate court may then conclude that it will exercise its discretion to consider the alleged error, keeping in mind that such an exercise of discretion is not automatic, and only after explaining its reasons for doing so. Id. at 382. The Supreme Court listed some of the factors that an appellate court may consider in making that determination in Ailes. Id. at 382 n 6. Thus, the bar for "plain error" review is set high, and the exception usually will not relieve a party from the requirement to preserve error for appeal. B. What is the rationale for the preservation policy? Two major purposes underlie the preservation policy: fairness and efficiency. State v. Stevens, 328 Or 116, 122, 970 P2d 215 (1998). In Davis v. O'Brien, 320 Or 729, 737, 891 P2d 1307 (1995), the Supreme Court stated that "the rules pertaining to preservation of error in trial courts are intended to advance goals such as ensuring that the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument." In State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000), the court explained that "a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." More recently, in Peeples, the Supreme Court explained the fairness and efficiency purposes in detail: "Preservation gives a trial court the chance to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one Fundamentals of Oregon Civil Trial Procedure 11–1 Chapter 11—Protecting Your Appeal already made, which in turn may obviate the need for an appeal. See Shields v. Campbell, 277 Or 71, 77, 559 P2d 1275 (1977) ('A party owes the trial court the obligation of a sound, clear and articulate motion, objection or exception, so as to permit the trial judge a chance to consider the legal contention or to correct an error already made.'). Preservation also ensures fairness to an opposing party, by permitting the opposing party to respond to a contention and by otherwise not taking the opposing party by surprise. * * * Finally, preservation fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it. See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (to promote judicial efficiency, unpreserved alternative ground for affirmance may be raised on appeal when, among other considerations, record has been fully developed). Our jurisprudence, thus, has embraced the preservation requirement, '[not] to promote form over substance but to promote an efficient administration of justice and the saving of judicial time.' Shields, 277 Or at 77- 78, 559 P2d 1275." 345 Or at 219-20 (citation to Davis omitted). C. Preservation at work: ORAP 5.45. The preservation requirement is stated in the Oregon Rules of Appellate Procedure in ORAP 5.45. Under ORAP 5.45(1), "[n]o matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may, in its discretion, consider a plain error." The rules for briefing require a detailed showing that a party has preserved an issue for appeal. Under ORAP 5.45(4)(a), "Each assignment of error shall demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court." For each assignment of error, a party must "specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court, the method or manner of raising it, and the way in which it was resolved or passed on by the lower court." Id. More specifically, the party must identify "pertinent quotations of the record where the question or issue was raised and the challenged ruling was made, together with reference to the pages of the transcript or other parts of the record quoted or to the excerpt of record if the material quoted is set out in the excerpt of record." Id. Finally, “[i]f an assignment of error challenges an evidentiary ruling, the assignment of error must quote or summarize the evidence that appellant believes was erroneously admitted or excluded. If an assignment of error challenges the exclusion of evidence, appellant also must identify in the record where the trial court excluded the evidence and where the offer of proof was made; if an assignment of error challenges the admission of evidence, appellant also must identify where in the record the evidence was admitted." Id. Rule 5.45 illustrates that, when you are litigating a case in the trial court, you must take care to preserve issues for appeal adequately, which includes raising issues timely, with specificity, and on the record. Fundamentals of Oregon Civil Trial Procedure 11–2 Chapter 11—Protecting Your Appeal D. When is an issue adequately preserved? The adequacy of preservation in any particular case is a harder question to answer than describing the purposes of preservation. Perhaps of some comfort, you can expect that appellate courts in Oregon will try to be pragmatic and to focus carefully on what happened in the trial court, bearing in mind the purposes of preservation. In State v. Amaya, 336 Or 616, 629, 89 P3d 1163 (2004), the Supreme Court emphasized that the preservation rule has a "practical" purpose. The court said that again in a different way in Peeples: "Preservation rules are pragmatic as well as prudential." 345 Or at 220. Thus, it explained, the adequacy of preservation varies in different circumstances: "What is required of a party to adequately present a contention to the trial court can vary depending on the nature of the claim or argument; the touchstone in that regard, ultimately, is procedural fairness to the parties and to the trial court. See generally State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (distinguishing requirements for 'raising an issue at trial, identifying a source for a claimed position, and making a particular argument'). In some circumstances, the preservation requirement gives way entirely, as when a party has no practical ability to raise an issue.