Trial lawyers often think of appellate issues as something to deal with after the verdict. But by the time a case gets to appeal, much of the damage—or success—has already been baked into the record. Across the country, appellate courts are signaling the same message: if you didn’t preserve it, we won’t fix it.
Failing to properly frame issues, make timely objections, or secure rulings on the record can doom even the most meritorious appeal. Appellate courts are increasingly calling out these failures, not just in unpublished opinions, but in full-throated published ones—putting trial advocacy under the appellate microscope.
The Preservation Gap Is Real
Preservation doctrine isn’t new. What is new is how often it’s becoming the central reason an appeal fails. A quick test on Westlaw confirms the point: searching for (fail! /3 preserve) /s (appe! /s review)—targeting opinions that address a failure to preserve an issue for appellate review—returns 2,554 results from the federal courts of appeal.
Now apply a date filter. Of those, 251 decisions were issued within just the past three years.
In other words, 10% of all federal appellate decisions addressing preservation failures since 1879—the earliest hit being Trenier v. Stewart, 101 U.S. 797 (1879), where the Court criticized objections that failed to inform the trial court of the grounds—have come down in the last 36 months. That’s not just noise. It’s a signal.
Appellate judges have little patience for parties asking them to fix unpreserved errors—especially when the record shows a missed opportunity to raise or cure the issue below. Even invoking the plain error doctrine, which allows review of certain unpreserved errors affecting substantial rights, is an uphill climb. See Greer v. United States, 593 U.S. 503 (2021).
This isn’t legal formalism. It’s practical reality. Without a preserved issue, there’s often no record to support reversal.
Trial Lawyers Under the Appellate Lens
In recent opinions, courts are becoming more explicit in their critiques of trial performance. Some panels now openly note when parties attempt to craft arguments on appeal that disregard what actually happened below. As the Seventh Circuit put it: parties sometimes “proceed as if the bench trial never happened.” United States v. Witkemper, 27 F.4th 551, 554 (7th Cir. 2022).
These are subtle—and sometimes not-so-subtle—reproaches. And an appellate lawyer hears them loud and clear.
Trial lawyers who assume the appellate court will simply “get it right” later are missing the strategic overlay between trial and appeal. Every objection, motion, and proffer isn’t just about convincing the trial judge—it’s about building a launchpad for review.
The Rise of the Embedded Appellate Lawyer
In complex civil and criminal litigation, a growing number of trial teams are bringing in appellate counsel before the verdict—sometimes before jury selection. These lawyers aren’t there to argue. They’re there to ensure that arguments survive.
This includes:
This isn’t luxury—it’s insurance. Especially when millions of dollars or years of liberty are at stake.
Conclusion: Win the Appeal Before It’s Filed
Appellate practice isn’t just about writing briefs and making arguments—it’s about protecting issues from erosion at every stage of litigation. Trial lawyers who understand how appellate courts think—and who build a record accordingly—do their clients a far greater service.
And those who don’t? The appellate courts are watching.
