To preserve an issue for appellate review while at trial, is it acceptable to rely on a standing objection advanced when the issue first arises?  Or should you renew your position whenever confronted with objectionable conduct or evidence?  A recent Delaware decision illustrates the fine line between renewing an objection to preserve it for appeal and going overboard by repeating the objection when the trial judge has already ruled on it.

In ev3, Inc. v. Lesh, 103 A. 3d 179 (Del. 2014), the Delaware Supreme Court reversed a $175 million jury verdict in a breach of contract case, finding that the trial court erred by allowing the plaintiff to rely on non-binding provisions in a letter of intent that conflicted with controlling provisions in a subsequent merger agreement. 

Both before and during trial, the defendant argued that the non-binding provisions of the letter of intent were inadmissible.  The defendant first raised this argument in a motion in limine, which the trial court denied.  During trial, the defendant objected to the use of certain demonstratives and elicited testimony regarding the impact of the letter of intent.  The court overruled the objections.  Finally, the defendant filed a motion requesting that the jury be instructed to disregard the letter of intent.  The court did not rule on that motion, and at the charge conference the defendant did not argue the motion or otherwise raise the issue again.  On appeal, the plaintiff argued waiver.

Although the defendant objected to the use of the letter of intent at least three times before and during the trial, did it waive the argument by failing to renew it at the charge conference?  The Delaware Supreme Court concluded there was no waiver. 

Noting that the defendant “had consistently, and at some risk of testing the [trial court’s] patience, pressed its position regarding the admissibility of the letter of intent,” the court refused to find waiver.  The court held that no waiver occurs “if the party’s position previously has been made clear to the trial judge and it is plain that a further objection would be unavailing.”  This is commonly referred to as the “unavailing exception.”

Recognizing the tension between preserving an objection through repetition and arguing matters already ruled upon by the trial court, the Delaware Supreme Court excused the defendant’s charge conference silence in finding that “any conduct [by the defendant] that indicated some acceptance of the court’s rulings was necessary to continue the trial.”  After the trial court had made its position clear, the defendant simply “had to deal with [that] reality … until it could challenge the rulings on appeal.”

Preservation Issue

  • Is it better to repeatedly object or rely on a standing objection?

Tip:In this case, both the trial court and the appellate court excused the defendant’s failure to repeat its objection at the charge conference based on the defendant’s course of conduct in pursuing the objection thoroughly both before and during trial.  The Delaware Supreme Court cited to Wright and Miller § 2553 in support, relying on an exception that, although adopted by several circuits, “does not command universal judicial acceptance.” 

Absent a specific rule of procedure directly on point in the specific jurisdiction, however, practitioners should not assume that an appellate court will apply the exception to their case.  Even in jurisdictions that recognize the exception, practitioners should be aware that the court’s decision is largely a discretionary one, and it may refuse to excuse a party’s failure to renew an objection where it is not convinced an objection would have been “unavailing.”  Thus, practitioners should be wary of remaining silent and placing their faith in their earlier objections. 

Accordingly, although the unavailing exception may have been codified by certain procedural rules and has been accepted by many courts as a judicial doctrine, the best practice is to renew your objection and avoid this exception analysis altogether.  If you find yourself faced with a judge who has made his or her position clear and will not tolerate a repeated objection on your issue, the unavailing exception may protect you, but relying on that exception is not advisable and you should avoid it whenever possible to ensure that your issue is preserved. 

Moreover, although the trial court may have issued a definitive ruling on the admissibility of certain evidence, it may be prudent to reassert the issue as it pertains to different procedural aspects of the case.  For example, the practitioner should be vigilant to determine whether a certain jury instruction is appropriate or inappropriate based upon the trial court’s prior evidentiary ruling.  Therefore, it may be wise to assert the specific evidentiary argument as it relates to a particular jury instruction to highlight the existence of harmful error on appeal. 

This tip goes hand-in-hand with the rule requiring that the complaining party contemporaneously object at trial.  For further information on this rule, please see Cristina Alonso’s November 2014 tip: “Motions In Limine, Contemporaneous Objections, And The Need To Adequately Preserve The Record.”