Patrick Megaro, Esquire
Do you know how many requests I get for folks to “guest write” an article? Tons. And, I’ve never taken anyone up on this, ever. I have lots of criminal defense buddies, but I’ve declined their offers.
That being said, my friend Patrick made two good points to me the other day while having lunch at Beth’s Burger Bar. First, the Peanut Butter Burger will change your life. Yes, it was almost that good.
Second, I should warn my defense attorney friends about all the problems Patrick sees on the appellate level. He’s right about this. Thus, the article below, written by an expert criminal appellate attorney.
That being said, this is an episode of Inside Baseball. Its for defense attorneys, or those curious souls wishing to peek behind the curtain.
Enjoy Patrick Megaro’s two part warning to we defense attorneys, Part 1 is listed below, I’ll have Part 2 out shortly.
Patrick Michael Megaro is a criminal appellate and post-conviction relief attorney, who practices in New York, New Jersey, North Carolina, Florida, Texas, and Washington State, and numerous Federal courts. A native of New York, he started his legal career with The Legal Aid Society, Criminal Defense Division in New York City as an institutional public defender before going into private practice. As an attorney, he has tried over 50 cases to verdict in various State and Federal courts, and has handled thousands of appeals and post-conviction relief petitions. He is a partner in the Orlando-based firm Halscott Megaro, P.A. and Appeals Law Group.
“This issue before us was not properly preserved for appellate review and is therefore not now cognizable. Affirmed.”
We appellate lawyers cringe when we see these words written, especially in our own case decisions. This means that no matter how brilliant the trial attorney was, they did not make a specific, timely objection at the trial level, which has effectively waived their client’s right to appeal that issue.
First, let us start with something we have all (should have) learned in law school: general, non-specific objections are insufficient to preserve an issue for appeal.
While we all know this, but MANY times we see trial lawyers simple say “objection” or “We object to ____” without going further.
“Preservation of error principles require parties to be specific with their objections so as to inform the trial court of the perceived error.” State v. Garza, 118 So.3d 856 (Fla. 5th DCA 2013).
This means you have to spell out WHY you object – be it in a motion, a post-hearing memorandum of law, a written notice of objection, or an argument on the record at the appropriate time why something is legally erroneous. The objection must be SPECIFIC.
Second, the objection must be TIMELY and CONTEMPORANEOUS. This means that you have to immediately object when something is coming into evidence – sometimes before and after.
The law requires certain objections to made at certain times in order to properly preserve them. Here are some practice tips for the most common issues that arise during the course of a trial: Continue Reading