Appealing to the Appellate Division: Preserving the Trial Court Record

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Appellate Law Attorney

As I discussed in the “Standard of Review- Part 1” blog, avoiding having to use the plain error standard in an appeal is a critical portion of conducting a trial.  Any judgments that are based on interpretations of the law, such as a motion for summary judgment, are automatically reviewable.  This blog will discuss preserving those other issues, such as evidentiary rulings and findings of fact made either by the jury or the court.  Remember that if the attorney does not object to the issue before or during the trial, the appellate court says that any subsequent objection is waived (subject to the “plain error” rule).  So what are some ways to sustain issues for appeal?

When it comes to objecting to evidence, make sure these objections are made with specificity.  Provide a ground and reasoning as to why this evidence should not be introduced.  Force the court to make a ruling on your evidentiary objection on the record as quickly as possible.  In fact, any objection made and every ruling the trial court makes should be on the record, even if the conversation occurs away from the court reporter or recording device.  Remember, the appellate court only knows what occurred from reading the transcript and any orders the court signs or prepares.  If evidence is excluded, R. 1:7-3 allows attorneys to detail on the record what the nature of the evidence is and what it would have established had it been brought in, allowing the exclusion of evidence to be preserved for the record.

Another area for appeal is objecting to the issues that are brought up in trial.  The most common way to take care of specific claims is through a motion for summary judgment.  But if there is a factual dispute in any of the claims, the court will deny the motion.  So another tool a practitioner has is the motion in limine, which is a motion made before trial to bar certain evidence from coming in, or to disallow certain witnesses.  Because it requires the trial court to make a ruling on the issue, the exclusion or inclusion of the issue in question makes this appealable.  Should motions to limit certain evidence from coming in are granted, and somehow these issues seep into the testimony of a witness or an attorney’s closing remarks, the attorney has grounds to object and claim on appeal that the jury was prejudiced by the remarks made.

Finally, if you plan on appealing findings of fact made by the jury or court, never forget to make a motion for a new trial.  It is a heavy burden to be granted a new trial, as the verdict must be against the “great weight” of the evidence.  But failure to do so will prevent the appellate court from hearing that appeal, per R. 2:10-1.

To discuss your NJ Appeal & Appellate Court matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.