by Jonathan C. Noble 3 minute read
YOU MUST PRESERVE YOUR RIGHTS AT THE TRIAL COURT LEVEL IF YOU WISH TO PURSUE AN APPEAL. ISSUES THAT ARE NOT PRESERVED AT TRIAL ARE NORMALLY WAIVED ON APPEAL.
I am sometimes contacted by a family law litigant who wants me to handle their appeal. They do not agree with some aspect regarding the outcome of their family law matter. For example, they are convinced that their divorce decree is somehow unfair, or they allege the court mistakenly allowed damaging hearsay testimony during a child custody trial, or that unauthenticated documents were improperly admitted in evidence during a final PFA hearing.
Many potential appellants mistakenly believe they get to re-try their entire family law case on appeal. For pro se family court litigants, pursuing an appeal is usually the first time they seek to hire an attorney. Unfortunately, even the best appellate lawyers cannot undo the damage that has already been done at the trial court level.
IN PENNSYLVANIA APPELLATE COURTS, REVERSIBLE ERROR ALONE IS NOT USUALLY ENOUGH TO PREVAIL ON APPEAL.
When I interview a potential client regarding an appeal, I dig into any possible reversible error made by the trial court. However, unless a specific and timely objection is made on the record before or during trial, most reversible errors made by a trial court are almost always waived on appeal. In other words, unless a litigant (or his or her counsel) makes a timely objection to any aspect of the proceedings, at trial or before trial (i.e. filing a motion in limine), and unless the objection is noted on the record, the issue cannot be raised for the first time on appeal. There are a few exceptions to this rule, but the exceptions are rare.
NON-LAWYER, PRO SE LITIGANTS IN FAMILY COURT ARE OFTEN DOOMED ON APPEAL
I have seen my fair share of non-lawyer, family court litigants attempt to represent themselves in family court. This is a mistake that often leads to a less than optimal outcome. Often without recourse. Most non-lawyers are not familiar with the Rules of Civil Procedure. Most non-lawyers do not understand the Rules of Evidence. Non-lawyers are not familiar with the statutes and decisional law that courts are constrained to follow. Non-lawyers (as well as many practicing trial attorneys) are not familiar with the Rules of Appellate Procedure. A non-lawyer who represents himself or herself in family court is analogous to a person walking in a mine field, with a blind fold on. You may get a good result by getting to the other side unharmed, but if you do, you will be beating the odds.
DO NOT GIVE UP WHEN SEEKING LEGAL COUNSEL IN ANY FAMILY COURT MATTER, OR ON APPEAL. YOUR FUTURE MAY DEPEND ON IT.
Last week, I saw a bumpersticker that read: “If you think education is expensive, try ignorance”. The same holds true for having competent legal counsel on your side in any important legal matter. If you can’t afford the attorney of your choice, contact your local bar association for a referral until you find an attorney who you trust, and can afford. Some local county bar associations have a “legal access project” where some attorneys take certain cases at a reduced fee. If you qualify as a low income party, you should contact your local legal aid office. In addition, some law schools may have a family law clinic, where third year law students are permitted to represent clients in certain family law matters. The bottom line: do NOT give up when seeking legal counsel in family law matters.