In the “in case you didn’t know, now you know” column, at the end of March, the Washington Supreme Court once again made clear that if you do not properly preserve any and all errors at the trial court level, you may lose the opportunity to argue those errors on appeal.
In Fireside Bank v. Askins, the Washington Supreme Court reversed the Court of Appeals, which had reversed a trial court order granting relief from a judgment under Civil Rule 60(b). The Supreme Court held that the argument on which the Court of Appeals relied upon for its decision was never made at the trial court level, and the Court of Appeals did not explain why it wanted to exercise its jurisdiction to decide the issue anyway.
This is yet one more example of a litigant losing an argument because it failed to raise it at the trial court. The preservation of error rules exist for a reason. The trial court should ordinarily be given the opportunity to right a wrong first because costly retrials and appeals would then be avoided. Having the trial court fix an error is the fastest, cheapest, and easiest thing for all parties, including the court, involved.
How do lawyers avoid this problem? There are several ways, but none is a substitute for clear thinking in advance about your client’s case, what you have to prove to prevail, and what evidence is necessary to prove the case. Talk with colleagues who have handled similar cases. Learn from their experiences.
Once you’re in the thick of things, motions in limine and written offers of proof are a great way to preserve evidentiary issues. Pocket briefs can also help with both legal and evidentiary issues that arise at trial. Don’t forget posttrial motions and motions for reconsideration, as well.