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PreservingAppellateErrorImagine you are standing at the lectern inthe courtroom on the second floor of theCarroll Gartin Justice Building with ChiefJustice Randolph saying to you, %u201cThat may bea good argument, counsel, but can you pointus to where in the record that you made theargument in the trial court?%u201d Such imaginedmoments are the nightmare fuel of appellatelawyers. With limited exceptions, an appellatecourt will not make right on appeal an issuethat counsel did not ask the trial court to getright earlier. Without a good answer to ChiefJustice Randolph%u2019s question, your appeal - andyour client%u2019s case - may be sunk, potentiallyafter years of hard-fought litigation.This article provides some practice tips onpreserving error for appeal, using the contextof a jury trial as its framework. Revisiting thesetips within that context is more important nowthan ever. With fewer jury trials, many lawyershave not honed their error-preserving skills justas many have not honed their cross-examination skills. And there are plenty of traps waitingfor the unskilled and unprepared.Evidentiary ObjectionsWe might not always think aboutthe 100-series of the Mississippi Rules ofEvidence, but Rule 103 is key here. It governs%u201cRulings on Evidence,%u201d and it is worth reviewing before every trial.For rulings admitting evidence, a partypreserves error by (1) timely objecting ormoving to strike on the record, and (2) statingthe specific ground for the objection unlessapparent from context.1 A timely objection iscontemporary, meaning it is made %u201cas soon as itappears that the evidence is objectionable, or assoon as it could reasonably have been known tothe objecting party.%u201d2 Without a contemporaryobjection, an error is waived.3 An appellatelawyer%u2019s advice is to err on the side of cautionand make the objection earlier rather than later.Even the most forceful contemporarycry of %u201cObjection, Your Honor!%u201d will notpreserve the error without stating the ground.The ground or grounds must be specific, andif you forget one, you will not be able to fillit in on appeal.4 Again, the key here is beingcomprehensive and clear. If you are objectingon hearsay, relevance, and Rule 403 balancing, then say all of them. You do not want tohave to rely on arguing that the basis for yourobjection was apparent from context. Make it1Miss. R. Evid. 103(a).2Miss. Transp. Comm%u2019n v. United Assets, LLC, 188 So. 3d508, 512 (Miss. 2016) (citation omitted)3Id. There is, however, MRE 103(b) authorizing continuingobjections. Use with caution.4See Washington v. Kelsey, 990 So. 2d 242, 247 (Miss. Ct.App. 2008) (by objecting to testimony based on relevancebut not on hearsay, appellant waived argument on appealthat testimony was inadmissible hearsay).apparent on the face of the transcript.For rulings excluding evidence, an offerof proof is the best policy. Yes, Rule 103(a)(2) has an exception for when the evidence%u2019ssubstance was apparent from context, butwhy take that chance? What may be apparentto everyone in the courtroom on day eightof trial may not be so apparent to judges andlaw clerks focusing on pages 3278-80 of therecord a year later. You want the evidence in,so you already did the hard work of preparingyour presentation of it. Go ahead and makeyour offer of proof. It will eliminate any question on appeal.You also need to ensure that the ruling,whichever way it goes, is definitive and on therecord. If an issue is addressed informally inchambers, make sure you put it on the recordwhen the reporter is present. And if it is evenarguably unclear, you should clarify whetherthe court has made a definitive ruling on anissue, even if doing so risks the judge%u2019s ire. Youhave a duty to your client to obtain a ruling.One tool to help preserve error is themotion in limine. Writing the motion forcesyou to analyze why evidence is inadmissiblebefore the crucible of trial. It allows you toexplain why the law supports your position.At least in Mississippi%u2014but always check thisand every other preservation requirement ifyou are in a different jurisdiction%u2014a deniedBy Simon Bailey and Stephen Fritz22 SPRING 2025