As a general rule, appellate courts will not address issues that a party failed to raise in the trial court. ORAP 5.45(4). The parties are obliged to put the trial court on notice of actions/rulings that the parties consider erroneous. The objection must be both timely and specific, though the degree of specificity will vary, depending on the context. The failure to properly preserve a claim of error in the trial court is perhaps the most common basis for an appellate court to reject a claim.

Mechanisms for preserving the error of the trial court include—pretrial—a Motion to Strike, a Motion in Limine, a demurrer or a Motion for Summary Judgment. During trial, preservation may be accomplished by a timely and specific objection, a Motion to Strike, a Motion for Directed Verdict and/or Judgment N.O.V., a Motion for Judgment of Acquittal or a Motion for Mistrial.

Instances where preservation is not an issue include instances where of plain error— errors of law apparent on the face of the record, or challenges to subject matter jurisdiction. Those errors may be raised on appeal without regard to whether they were made at the time of trial.

Recent Discussion

Judy recently discussed a preservation issue with colleagues:

Do standing objections—where an attorney objects to the introduction of a particular type of evidence and then, to speed along the trial, makes a standing objection to similar evidence—preserve your record?

Judy's reply:

Interesting issue. I think the caution about standing objections (also referred to in the Oregon cases as "continuing objections") is warranted, not because the Court of Appeals does not recognize them so much as because it is critical to be specific as to the basis of your objection and the scope of the evidence to which it pertains.

As you know, the general rule on preservation is that counsel must have drawn to the trial court's attention the reason that the evidence is objectionable in a way sufficiently specific to allow the trial court to avoid the error assigned on appeal. So, the preservation issue is caught up in the scope of one's assignment of error. If the grounds for your assignment of error is identical to the grounds for your continuing objection, AND the objectionable evidence falls CLEARLY into the class of evidence you identified as being within the scope of your continuing objection, then your issue as to that evidence is preserved. However, often the basis and more often the scope of the continuing objection is unclear—then, because there was no objection to the specific evidence the admission of which is assigned as error, it is unclear whether the basis for the objection is exactly the same or whether the evidence falls within the scope of your continuing objection. If either of these problems arise, the Court of Appeals can rule that your continuing objection was not specific enough in basis or scope to alert the trial court to the now assigned error. So, to be safe, if you take a continuing objection you should be very careful to specifically define the basis of your objection AND class of evidence to which it applies (this latter problem is the more common one). If there could be ANY doubt that a particular piece of evidence falls into the scope of your objection, you should at trial stand up and note for the trial court that this evidence is within your continuing objection. Most judges appreciate the reminder.

But, take heart. The Court of Appeals is aware of how harsh a "failure to preserve" ruling can be in these situations and does not lightly conclude that a continuing objection failed to preserve error. See McCathern, 160 Or App 201 (1999), FN24: "Plaintiff contends that Toyota objected only to evidence of the Fox and Clark incidents and, thus, that no issue as to the other 13 incidents has been preserved for our review. Toyota responds that, after its initial objections, the trial court allowed a continuing objection as to lack of foundation for all other alleged 'similar incidents.' We agree with Toyota. Specific foundational objections as to each incident would, no doubt, have been enlightening. Nevertheless, to conclude that Toyota had failed to preserve error by failing to object, notwithstanding the explicit allowance of a continuing objection, would impermissibly 'mousetrap' trial counsel."

When in doubt—OBJECT.

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