Friday, January 06, 2012

Waiting to complain about something during an appeal is usually too little, too late

It has long been the law that in order to appeal an issue, you must preserve it at the trial court level or the appellate court cannot and will not hear it.  If an error occurs during your trial, you must log an objection -- or it is considered waived.  If a court allows hearsay testimony, fails to file procedure, misapplies the rules of evidence or otherwise makes and error, you cannot simply sit idly by and think to yourself, "I won't say anything now but I will really complain about this to the appellate court!"  If you do, you lost your chance forever.

In the recent Pennsylvania Superior Court case of Summers v. Summers, (quite the name to consider on a cold winter day), the parties appeared in court when Father filed a petition to reduce his child support.  The Court apparently accepted into evidence a letter from Father's doctor that indicated Father was disabled and could not work.  Mother did not have the opportunity to cross examine the doctor or explore the issue further.  However, she failed to object during the trial.

On appeal, Mother argued that the trial court had reduced Father's child support on the basis of the doctor's note which was hearsay and should not have been admitted as evidence.  Mother's claim is indeed accurate --- a doctor's note, without more, is indeed inadmissible hearsay evidence.  However, the appellate court found that because Mother did not object during the trial, she waived her right.

No doubt Mother handled the trial on her own, without an attorney.  When she was not happy with the results, I imagine she found a lawyer to prepare and file and appeal and that lawyer noticed that the note, which is hearsay, was entered into evidence.  Raising this objection for the first time on appeal, however, simply does not allow the court to provide relief.

The moral of the story:  make your objections at the trial court level so that if the trial court does make a mistake, you preserve your right to appeal.

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