WomensLaw serves and supports all survivors, no matter their sex or gender.

Preparing for Court

At the Hearing

What steps do I need to take during the trial to set myself up for possibly being able to appeal if I lose?

Although it may seem odd to start preparing for the possibility of filing an appeal while the trial is still going on, you will only be able to appeal an unjust trial ruling if you take steps during the trial to “make a record” that demonstrates your grounds for appeal. Here are the most important things you need to know and do during the trial:

  • Make timely objections to any mistakes. You will need to object to any mistakes the trial court judge makes as they happen so that the judge knows that you believe a mistake was made and has an opportunity to possibly correct that mistake. Making timely objections is called preserving your record. If you file an appeal, the appellate court will only be looking at the “record,” which includes all the documents from the trial litigation as well as the transcript of what was said during the trial, including any objections made. The appellate court will usually only consider those mistakes that you “preserved” in this way.
  • Anticipate and prepare for rulings on evidence. Often the need to object during the trial will be in connection with evidence you want the judge to allow in (“admit”) or evidence proposed by the opposing party that you want the judge to keep out (“deny”). It is important to prepare in advance your arguments in support of your own evidence as well as to think through possible challenges to any evidence that the other side is likely to try to admit. As part of that preparation, think about the possible need to make a “proffer.” A proffer is an argument you make after the judge has refused to admit a certain piece of evidence. You will need to politely ask the judge for the opportunity to make a proffer as to why your evidence should have been admitted. For example, if the judge refuses to allow you to submit threatening text messages from the abuser because they were sent too long ago, your proffer could be that the texts should have been admitted to show the long history of abusive behavior and why you are so fearful.
  • Know and ask for what you want. Make sure to ask the judge for everything that you want as a result of the trial and be prepared to explain the reasons for your request. For example, if you are asking for a protection order for yourself but you also fear for your children’s safety, be sure to ask for your kids to be included as “additional protected parties” on the order or request supervised visitation for the abuser. And, importantly, be prepared with a list of reasons to back up your request. You will also need to consider when you will have the opportunity to make your request, which could be in your opening statement and/or your closing argument. Making a closing argument will be especially important If you have not had a chance to ask for what you want by the end of trial. If the judge doesn’t ask if the parties want to make closing arguments, politely speak up and ask if you can do so. If the judge refuses, politely explain why you were hoping to make a closing argument.
  • Post-trial motion as a possible last resort. If you feel you did not have the opportunity to fully present your case, or if the judge rules against you for a reason that you couldn’t address during trial, it may be worth filing a post-trial motion, such as a motion for reconsideration or a motion to stay.