A. Introduction
B. Preservation Simplified
1. On the Record
2. At the Right Time
3. Obtaining an Express Ruling
4. Policy Behind the Preservation Requirement
C. Exceptions to the Preservation Requirement
D. Setting the Stage for Preservation
E. Pleadings and Pretrial Practice
1. Establish a Foundation in the Pleadings
2. Make Your Record in Pretrial Motions
(a) Motion to dismiss
(b) Motion to compel or for discovery
(c) Motion to suppress
(d) Motion in limine
(e) Motion for summary judgment
F. On Your Feet Now—Preserving Error During Trial
1. Object to Their Evidence and Defend Your Own
(a) Object to evidence you do not want admitted
(b) Protect evidence you want admitted
2. Test the Sufficiency of the Evidence with a Motion for Directed Verdict
3. Make Yourself Heard on Jury Instructions
4. Recusal, Voir Dire, Speedy Trial, Mistrial, and Closing Errors
G. Polish with Posttrial Filings and Motions
H. Final Thoughts
A. Introduction
Trial lawyers must preserve error. Arkansas's appellate courts will not consider arguments that were not preserved in circuit court. Perry v. Baptist Health, 368 Ark. 114, 118-19, 243 S.W.3d 310, 314 (2006); Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 414, 947 S.W.2d 780, 785 (1997). Scores of appellate arguments are rejected each term because they were not preserved.
Preserving error means presenting an argument to the circuit court or administrative tribunal and obtaining a ruling on it. This is essential to winning an appeal. Circuit courts, like the rest of us, make mistakes. They commit pure errors of law, like concluding a case was filed in a proper venue; and they commit factual errors, like concluding the evidence creates a submissible claim. Effective trial advocacy preserves these errors for appeal.
Well-sculpted error is powerful. It lays the foundation for an appeal. It also warns your opponent they are fishing in a poisoned pond and warns the circuit court it made a mistake. Few things are more comforting after a heartfelt loss than well-preserved error.
B. Preservation Simplified
Preservation requires that you alert the circuit court to error (1) on the record, (2) at the right time, and (3) by obtaining an express ruling. Though every step is critical, the third one is where a good many potential errors have fallen by the wayside on appeal.
1. On the Record
"On the record" means challenging error in documents filed with the circuit clerk or agency—the official court file—and challenging error in the official hearing transcript. Losing parties bear the burden of demonstrating error on the record. Sloop v. Kiker, 2016 Ark. App. 125, at 4, 484 S.W.3d 696, 699. You preserve error through pleadings, motions, so-called letter briefs, spoken objections, and proffers.
2. At the Right Time
"At the right time" depends on when the error occurs, but the phrase usually means challenging error when it occurs, or at the first opportunity to do so, and then repeating that challenge throughout the case. Black, Inc. v. Dunklin, 2018 Ark. App. 3, at 8-9, 540 S.W.3d 696, 703 (holding argument was waived by failure to object). You may waive challenges to error by failing to object when an error occurs (the "contemporaneous objection" rule), even if you have objected previously. The sooner your challenge, and the more persistent the challenge, the better.
3. Obtaining an Express Ruling
"Obtaining an express ruling" means you ensure the circuit court rules on your motion and objection, adjudicates your pleaded arguments, and receives your proffered evidence and jury instructions on the record. Filing a motion or making an objection is not enough. You must secure a ruling on your challenge. E.g., Gilliam v. Sanders, 2013 Ark. App. 227, at 1 (rejecting challenge that was argued but not adjudicated). The more express the ruling the better. Our appellate courts are often finicky here and sometimes outright conflicted. E.g., Lockard & Williams Ins. Servs. Inc. v. Waldrip, 2020 Ark. App. 274, 600 S.W.3d 662 (5-4 split over a preservation issue in a default-judgment case).
The takeaway is that each of these three steps is required to effectively preserve trial errors for appeal. Do not take any one of them for granted.
4. Policy Behind the Preservation Requirement
The policy behind preservation is to limit appellate review to errors that were fairly developed below. By preserving error, your opponent and the circuit court have an opportunity to correct the error. If the error is a deficiency in the proof, your opponent would be given an opportunity to call additional witnesses to correct that deficiency. Kinsey v. State, 2016 Ark. 393, at 8, 503 S.W.3d 772, 777. Preservation allows the circuit court to fix mistakes before they contaminate the case.
C. Exceptions to the Preservation Requirement
Arkansas does not follow the federal plain-error rule. Lovelady v. State, 326 Ark. 196, 199, 931 S.W.2d 430 (1996). But there are exceptions to Arkansas's preservation doctrine. Although it is critical to develop and preserve error in circuit court, some errors can be argued for the first time on appeal:
• Subject-matter jurisdiction can be raised for the first time on appeal, even sua sponte by the appellate court. DeSoto Gathering Co. v. Hill, 2017 Ark. 326, at 9, 531 S.W.3d 396, 402 (2017).
• Procedural defects in the appeal, including defects that occurred in the circuit court, can be raised for the first time on appeal. Medicanna, LLC v. Ark. Dep't of Fin. and Admin., 2021 Ark. 227, at 3-5.
• Certain narrowly construed errors in criminal trials are not subject to the preservation rule. Willingham v. State, 2021 Ark. 177, 631 S.W.3d 558 (void or illegal sentences); Tiarks v. State, 2021 Ark. App. 325, at 9-11, 633 S.W.3d 788, 794-96 (discussing the four Wicks v. State and other criminal-law exceptions); Cash v. State, 2020 Ark. App. 556, 614 S.W.3d 891 (applying Wicks, which is extremely rare, and reversing a criminal conviction).
• The sufficiency of the evidence at a civil bench trial can be challenged for the first time on appeal. $15,956 in U.S. Currency v. State, 366 Ark. 70, 72-73, 233 S.W.3d 598, 599-600 (2006).
• When a party has no notice or opportunity to object to a final order or judgment, it may pursue challenges to that ruling on appeal. Olson v. Olson, 2014 Ark. 537, at 7-8, 453 S.W.3d 128, 133. But see Lane v. State, 2015 Ark. App. 672, at 3-5 (finding Olson does not apply to a failure to request a written criminal-revocation decision required by statute).
• Appeals from county court and district court to circuit court for a trial de novo do not require preserving error before pursuing it in circuit court. ARCrP 36(g); DCR 9(c), (e); Lamontagne v. Ark. Dep't of Human Servs., 2010 Ark. 190, at 10-13, 366 S.W.3d 351, 356-57 (Wills, J., concurring) (noting trials de novo require no prior preservation).
• Appellate courts presume the circuit court reached a correct result and will affirm it for any reason. Preservation thus applies only to an appealing party's arguments. Monsanto Co. v. Ark. State Plant Bd., 2021 Ark. 103, at 9, 622 S.W.3d 166, 170-71; Riddle v. Udouj, 99 Ark. App. 10, 16-17, 256 S.W.3d 556, 560 (2007). A defending party is free to argue the circuit court reached the right result for a wrong reason, defending a victory below while admitting the circuit court's reasoning was flawed.
Even if your argument falls outside these exceptions, all is not lost. Preservation is not always a rigid barrier on appeal. Appellate judges and practitioners have long debated the preservation rule. Lockard & Williams Ins. Servs., Inc. v. Waldrip, 2020 Ark. App. 274, 600 S.W.3d 662 (five-to-four decision with two dissents debating preservation of issue on appeal; one dissent cited a 2015 law-review article criticizing Arkansas's preservation doctrine); Schermerhorn v. State, 2016 Ark. App. 395, 500 S.W.3d 181 (majority and concurrence disagreeing on preservation). Avoiding a winning argument because it was not sufficiently argued below cuts against notions of fair play and substantial justice. When in doubt, consider raising that argument on appeal.
If your trial argument is generic, it may be sufficient depending on the appellate court's view of that issue. Woods v. State, 2019 Ark. 62, 567 S.W.3d 494 (majority opinion criticized for considering issues beyond the argument preserved below). Cf. Kinsey v. State, 2016 Ark. 393, at 8-9, 503 S.W.3d 772, 777-78 (finding argument not preserved and noting "mere citation of that case [does not] preserve for appeal any and every legal argument based thereon"). Specific preservations well stated (not too long, not too short) and backed by citations is the safest practice.
Our appellate courts at times say they will not affirm on an issue an appellee did not raise below. See, e.g., Yanmar Co. v. Slater, 2012 Ark. 36, at 14, 386 S.W.3d 439, 448 (refusing to consider argument for affirmance because appellee did not raise the argument below). But they also say the exact opposite, that they will affirm even if the appellee did not raise the issue below. McAdams v. McAdams, 357 Ark. 591, 596, 184 S.W.3d 24, 28 (2004) (affirming on the issue of res judicata "although the issue of res judicata was not raised below"). To date, the Arkansas Supreme Court has not clarified this inconsistency.
There is no constitutional right to a state-court appeal. Gilliam v. State, 305 Ark. 438, 440, 808 S.W.2d 738, 739 (1991); Swindle v. Benton Cty. Cir. Ct., 363 Ark. 118, 124 n.1, 211 S.W.3d 522, 526 n.1 (2005). A robust preservation doctrine therefore remains alive and well in Arkansas, and it ends scores of arguments every year in our appellate courts. Aside from the above exceptions, failing to preserve error in the circuit court means that your alleged error will not be considered on appeal.
D. Setting the Stage for Preservation
Well-sculpted error...
