Rules to Preserve Error in Jury Trials

Florida Law is well established that a party seeking appellate relief or a new trial must have given the trial court an opportunity to correct the alleged error. If counsel fails to give the trial court an opportunity to correct the alleged error, the appellate court’s standard of review changes to the strictest standard applied — that of fundamental error. An appellate court will not review a trial court’s ruling on any issue, procedural or substantive, unless the appellant can establish either that it preserve the issue in the trial court or that the issue constitutes fundamental error. Therefore, it is essential in all cases to insure that an error occurring at the trial court level is properly preserved for appellate review.

While preservation of error is important at all phases of the trial court proceeding, the following, which is by no means exhaustive, will provide a list of those trial events which create questions of preservation of error on appeal.


Pre-emptory Challenges

Counsel seeking to question opposing counsel’s use of a pre-emptory challenge must make a timely objection. The objection must demonstrate on the record both that the challenged persons are members of a distinct racial or gender group and that there is a strong likelihood that they have been challenged solely because of their race or gender. Absent a timely and proper objection, an opponent of a pre-emptory challenge may not inquire into the opposing sides motives for exercising the challenge. The majority of Florida cases hold that there must be a formal objection to preserve any error, not simply requesting an inquiry or noting that the challenge juror is of a different race or gender.

Challenges for Cause

Counsel can preserve an error in the denial of a challenge for cause only by exhausting all his or her pre-emptory challenges and thereafter; a) seeking additional pre-emptory challenges; b) having the request for additional challenges denied; and c) identifying on the record which objectionable jurors he or she would excuse if granted additional challenges.


Motions in Limine

A motion in limine alone is not sufficient to preserve an error in the omission of evidence. A contemporaneous objection must be made at the time the evidence is offered. A party who has specifically moved in limine to exclude evidence, will be powerless on appeal against a party who has violated the order in limine, unless there is a contemporaneous objection.

Proffer of Evidence

Counsel objecting to the introduction of evidence cannot claim for the first time on appeal that a proffer was inadequate. The objecting lawyer must challenge the proffer as insufficient and assert that an adequate ruling on the admissibility of the evidence cannot be made based on the proffer presented.


A voir dire issue is not preserved for appeal unless counsel again objects to the entire jury immediately before it is sworn. The objection can be made either by accepting the jury subject to the earlier objection or renewing the motion to disqualify. The objection must be made whether the question arises from a challenge for cause or a pre-emptory challenge.


In addition to the objection being timely made, an objection must be articulated with sufficient specificity to preserve the error for appellate review. Counsel relying on a “continuing objection” should insure that the continuing objection covers all possible aspects of the error in relevant testimony or evidence.


In closing argument, a contemporaneous objection is required to preserve error in the argument of counsel. If the objection is sustained, counsel must contemporaneously request a mistrial in order to preserve the issue of improper comment by counsel.


Objections based on the failure to give a jury instruction must be preserved by requesting a desired instruction. The counsel objecting to a jury instruction must also propose a proper instruction. While verbal requests are sometimes sufficient to preserve an error in jury instructions, it is advisable to file written requested instructions to insure preservation. The contemporaneous objection rule applies to jury instructions. A specific contemporaneous objection must be made if the trial court gives an erroneous instruction but is not necessary to preserve error in a failure to give a request of instructions. An objection after the jury has begun deliberations is untimely.


On sufficiency of evidence issues, the prudent course is to present the issue in both motions for a directed verdict and new trial.


A motion for directed verdict that is denied at the close of plaintiff’s case must be renewed at the close of all the evidence in order to preserve the denial of the motion for appellate review.


A timely new trial motion has been held necessary to preserve issues such as sufficiency of evidence, adequacy or excessiveness of the verdict and errors in jury instructions. Counsel are well-advised to ensure that post-trial motions are timely and specific.

Provided as an educational service by John Raymond Dunham, III, Esq..

This publication is intended to serve you. If you would like certain topics covered, or have any questions or comments, you are invited to contact Mr. Dunham at: 941.951.1800, Ext. 250, Facsimile: 941.366.1603, E-Mail:, Web site: or write him at LUTZ, BOBO, TELFAIR, DUNHAM & GABEL, Two North Tamiami Trail, SARASOTA, FLORIDA 34236.

This publication is designed to provide accurate and authoritative information in regard to the subject matter covered and report on issues and developments in the law. It is not intended as legal advice, and should not be relied upon without consulting an attorney.