Principles and pitfalls of preservation of error.

Appellate courts are reactive, addressing only errors on matters actually ruled upon by the lower tribunal. (1) "In the absence of jurisdictional or fundamental error, it is axiomatic that it is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court." (2) Because appellate courts do not address matters in the first instance, a damaging blow to an otherwise powerful appellate argument is the trial counsel's failure to preserve the argument for further review. Accordingly, preserving error is a critical component of the appellate process.

An appellate court's reviewing role originated as part of the common law tradition and represents a fundamental distinction from trial courts. Requiring litigants to preserve error before the lower tribunal maintains the integrity of the judicial process by ensuring that the lower tribunal has the opportunity to correct errors. Despite the apparent simplicity of this principle, however, the method for preserving error varies based upon the nature of the proceeding and the procedural posture. Therefore, a litigant must be aware of the differences and handle such matters specifically and contemporaneously. While it is impossible to dictate exact procedures for every situation, this article outlines and examines certain methods of preserving matters for review in the civil context and highlights...

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