Preservation and Presentation Matters

Karen L. Dowd

Each year when I review the years’ Appellate Court decisions for the Appellate Review at the Connecticut Legal Conference, I note cases in which issues are not decided because they were not preserved or presented properly. The best of issues will get you nowhere if an appellate court finds that you did not properly raise it below at the trial level or before them. So . . . a reminder.

Preserve the issue at trial. As Judge Flynn noted: “A trial judge cannot be said to have abused his discretion when he was never on notice that he was being asked to exercise it.” Moody v. Commissioner of Correction, 156 Conn. App. 210, 211 (2015). If you know an issue will be coming up, prepare for it. Prepare motions, jury charges, jury interrogatories; whatever you need to present the issue meaningfully to the trial court and thereby preserve the legal and factual aspects for the appellate court. If you are surprised by an issue, take a moment and think about what you will need to show an error if you appeal. Just raise the law and facts which you will need to present the issue at trial and on appeal.

Present the issue on appeal. If you want to raise an issue, you must do so fully. Brief the facts and make sure necessary items are in your appendices. Brief the law, which means state it and then analyze it. See In re Oreoluwa O., 157 Conn. App. 490 (2015). Failure to present the issue fully may preclude review. If it’s worth raising, it’s worth briefing in full.