What you do—or fail to do—during trial can determine whether your client has any meaningful right to appeal. In this solo episode of the Texas Family Law Insiders Podcast, family law appellate attorney Holly Draper shares practical guidance for trial lawyers on one of the most commonly misunderstood areas of litigation: preserving error for appeal.

Drawing on years of reviewing trial transcripts in family law appeals—including cases that reached the Texas Supreme Court—Holly highlights the procedural mistakes trial lawyers frequently make that can completely eliminate appellate arguments. From objections to offers of proof to evidentiary gaps, this episode provides a clear roadmap for protecting the appellate record while still effectively advocating in the courtroom.

For family lawyers who rarely handle appeals but want to protect their clients—and themselves—this episode offers essential, courtroom-ready guidance on how to make sure critical issues remain reviewable if a case goes up on appeal.

In this episode, you’ll discover:

–Why many attorneys lose appellate issues by failing to present evidence supporting their claims

–Why failing to properly preserve the record can completely eliminate appellate options

–How and when to make objections during trial

–The importance of obtaining explicit rulings on objections

–How offers of proof protect excluded evidence for appeal

Mentioned in this episode:

• Appeals
• Trial
• Admissibility
• Grounds
• Objections
• Trial Record
• Explicit Rulings

Transcript

Holly Draper: If you don’t make the right objection or make the right argument in the trial court on the record. You cannot bring that issue up in an appeal.

Announcer: You are listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Hello everyone. Welcome back to the Texas Family Law Insiders Podcast. I am Holly Draper, the CEO and managing partner at the Draper Law Firm, and today I wanted to hop on and do a quick solo episode to give advice to the family law trial attorneys out there coming from a family law appellate lawyer. If you are new here, I do both family law litigation and family law appeals.

Over the last six years or so, I’ve done a lot of appellate work and most notably, I represented the prevailing father in the Texas Supreme Court and in Ray CJC and the prevailing mother in the Texas Supreme Court in Starry versus Etheridge. So why did I want to do this episode? I do a lot of appeals and so I read a lot of trial transcripts, and sometimes temporary hearing transcripts depending on the situation, where other attorneys who are not appellate lawyers we’re handling the case. And I’m seeing a lot of mistakes made by trial lawyers that will kill the opportunity for an appeal or severely limit what we are able to appeal on. And so, I wanted to kind of raise those issues for you today and help you understand them. Kind of a, I want to help you, help me so that we can be successful on an appeal should you ever need to go that route.

It is not unusual for trial lawyers not to know what to do to preserve the record for an appeal. It happens all the time. This is because most trial lawyers have never done an appeal. Never will do an appeal. Most trial lawyers. Their cases just aren’t big enough, or they think the client would never spend the money, or they think that the ruling is going to be somewhere within the realm of reasonable. But it’s super important for trial lawyers to understand what you need to do to properly preserve every case for an appeal, because you never know. I have seen an awful lot of judges go rogue, go off the deep end, disregard the law, do things that you never in a million years thought they would do in your case. And if you haven’t done all the right things along the way, there’s nothing your client can do.

So, I posted in the Texas Appellate Lawyers Group asking for other opinions to kind of see what mistakes are they seeing attorneys regularly make so that we could cover as many issues as possible in this universally, um, lawyer, after lawyer, after lawyer was commenting that attorneys are failing to preserve the record. So, what does that mean? It can kind of mean a lot of things, but in a nutshell, it means if you don’t make the right objection or make the right argument in the trial court on the record you cannot bring that issue up in an appeal.

A lot of judges don’t want to let you preserve the record properly. They don’t want to be appealed. So just because a judge says you can’t do something, if you need to do it to preserve the record, it’s on you to make sure that you are making every attempt to do that.

First big thing would be with objections. Do not let a judge convince you to stop objecting. Sometimes a judge will sustain an objection as to whatever, and that means that same topic is going to come up over and over and over throughout your trial. Just because you objected the first time does not preserve that issue for all the rest of the times that it comes up in your trial. And it really can annoy judges when you keep objecting every single time to preserve the record, but you have to do it.

Do not let a judge convince you to stop objecting. I’ve seen judges say, “I’ll give you a running objection.” That is not a thing just because a judge tells you you can have a running objection on something, you still need to object every time it comes up to preserve that for an appeal.

And obviously, you know, we all have to work with these judges all the time. We don’t want to make them mad. Be polite about it and maybe say something like, you know, “I’m sorry, your Honor. I just have to do this for the record,” just so that the judge knows that you’re not trying to be an, a-hole about it, but you are trying to protect your client and do what you need to do.

Similarly to objecting to things. Failing to get rulings on objections can be, completely eliminate the fact that you made an objection to begin with. I’ve seen a lot of judges do that. They might say a thing or two, but they never actually rule. They might say, “Move along, counselor”, or, “I get it. Let’s move on.” That’s not a ruling. If that objection is important for your case, for purposes of an appeal, make sure and ask the court for a ruling on the objection.

So, what do you do if you try to admit something into evidence and the judge sustains an objection on the other side and will not let it in? This is another big mistake that we see lawyers make is failing to do an offer of proof. If you don’t put it out there in the record what you want to do or what evidence you’re trying to present, you cannot later say it was an error for the judge to keep it out. It is presumed that the evidence would not have changed anything if it had come in unless you show the appellate court what that evidence was. That’s the only way you can make this argument.

I have seen judges refuse to allow an offer of proof, and that is supposed to be a. Essentially an automatic win on an appeal if a trial court fails to make an offer of proof. I have seen that not be the case, but, you know, you want to do everything you can to make an offer of proof and to object to a court’s refusal to allow you to do one if they do.

I have seen some courts say you can put on an offer of proof after the trial is over. Why do they do this? A couple reasons. One, they don’t want it to influence their decision, but two, they don’t want to waste time on your offer of proof. If this happens, it is super, super important that you make a note and something to remind you when that trial is over, that you still need to put on that offer of proof, and you need to make sure that judge does not let the court reporter go before you put on your offer of proof.

It can be a big challenge in trials or hearings where you are severely limited on time because the judge might expect you to use some of your 20 or 30 minutes to put on that offer of proof. If you anticipate this could be a problem, you might want to try to have your offer of proof in an affidavit format or something like that where you can submit it to the court reporter in lieu of spending time on testimony.

It’s not something that I’ve actually done, just an idea that I have, but some way or another you have got to get it in front of, into the record, or an appellate court can never consider it.

Another common mistake we see people make is failing to put on evidence to support each of the claims. Just because you handed the judge a summary of relief requested does not mean you have put on evidence to support every request in that document.

A lot of attorneys don’t even admit there are summary of requested relief as an exhibit. I think you absolutely should because then at least there’s something in there showing that you asked for this, but you know, an attorney mentioning it during an opening statement or a closing argument or a summary of requested relief that is not admitted as an exhibit is not evidence to support your claims.

One of the big things attorneys fail to put on evidence to support is attorney’s fees. There’s very explicit guidance from the courts of appeals about what is required to prove attorney’s fees. Oftentimes, I know it is, you know, we assume we’re not going to get them. We know this particular judge is not likely to grant fees or we don’t have time and we think, well, we’re probably not going to get ’em anyway, so let’s just cut the attorney’s fees piece of this. But you know, you want to be really smart about your chances and is, you know, is there a statutory basis for fees in your case, et cetera.

The biggest one I see people making mistakes on comes to appellate attorney’s fees when appeals are not on your radar, when you’ve never done them. When you, in your wildest dreams, do not think that a case is going to ever be appealed, attorneys don’t put on evidence of appellate attorney’s fees. Sometimes they might include it in requested relief, but they don’t include it. If they do an affidavit for attorney’s fees, they don’t include it in their testimony. They just ask for it.

Case law is very clear that if you do not put on specific evidence of what an appeal is going to cost, you cannot be awarded attorney’s fees for appeal. That is not something you can go back and request later in an appeal. It has to be done at the trial court level.

Another mistake we see typically younger lawyers make would be failing to actually offer exhibits into evidence. If you use an exhibit and you show it to the witness and there’s some testimony about it, but you don’t actually offer it and you don’t actually get it admitted, it doesn’t matter what was said about it. It’s not part of your record.

Failing to object to expert testimony that does not meet reliability standards. It’s hard to go and appeal and argue this person was not an expert and shouldn’t have been considered one if you didn’t make that case in the trial court level.

Another big one, failing to have a court reporter or failing to ensure that discussions are had on the record. It is wild to me when I have attorneys who, you know, come to me with their case for an appeal and they give me all of this information about discussions that happened with the judge and why the judge did it this or that, because this is what they were all talking about amongst themselves off the record. And then I go read the transcript. That information is nowhere to be found. We can’t reference it in an appeal. We cannot base our arguments on it unless there’s something else in that record to support it.

So, I know there’s a lot of judges who would like to go back and have a discussion in chambers, or they would like to discuss something off the record at the bench. If it is an important issue that could come up on an appeal, insist that there is a record of that discussion.

As far as failing to have a court reporter goes, you know, most courts have them. I have seen people show up and for whatever reason there was not a court reporter that day. And you better be objecting to having a trial without a court reporter on a temporary hearing.

Or, potentially, even if you had a final trial in front of an AJ in, um, you know, some of the counties that have ajs. They don’t have court reporters and you have to bring your own. So, if you did not bring a court reporter to your temporary orders hearing in Dallas County and there’s a wild ruling, you can’t mandamus it because you have no transcript to back that up.

Announcer: This episode of the Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm, providing family law, appellate representation for non-parent custody cases, jurisdiction issues, property division, standing conservatorship, possession, and access, termination, parental rights, and grandparent access.

For more information, visit draper firm.com or call 469-715-6801.

Holly Draper: Another mistake we see people make is inviting error. You cannot complain about something that you asked the court to do. You cannot complain about something that you agreed to. Um, did you open the door to otherwise inadmissible evidence? Well, you might not be able to object to that evidence getting in.

Did you fail to object to exhibits offered by the other side? I mean, I see people all the time. You know, all these exhibits are being offered. No objection, no objection, no objection. Should you have objected? It’s possible that exhibit could be really bad for you. If there was an objection to be made really strongly, consider making it at that time.

When I asked other appellate lawyers where they see a lot of issues, a consistent theme that came up was jury charges. This is not my area of expertise, but it sounds like failing to object to jury charges and failing to do the right things in a charge conference can be fatal to an appeal. So, if you’re doing a jury trial, you really want to make sure that you understand what you need to object to and what you need to do with respect to that jury charge.

There’s a couple of key issues that I have dealt with in appeals that I kind of wanted to talk through when to object and how those issues can be preserved or not for an appeal.

I am very big on constitutional claims for appeals. I do a lot of parental rights constitutional work. I’ve dealt with, um, some other constitutional issues. If those haven’t been brought up in the trial court, you cannot raise them on appeal. Sometimes the constitutional issues might not be apparent until you get a ruling.

I have had cases like this. Um, starry v Etheridge is a good example where nobody asked for this mother to have a lifetime protective order issued against her, and then somehow the judge ended up making that ruling, and we were going to argue that was a constitutional violation, so they could not have raised that during the trial. But it was raised as part of a motion for new trial to make the argument that this was a constitutional violation. It was a de facto termination of parental rights, and a new trial should be granted because that trial lawyer. She’s very smart. It’s not me. Um, raised that issue in a motion for new trial. It was preserved and we were able to take it all the way to the Texas Supreme Court and win.

There were some other constitutional issues in that case that became obvious to me as I was briefing in and preparing for oral argument where, you know, there are a lot of constitutional infirmities in the protective order statute, and I did throw them in. And the justices on the Texas Supreme Court basically said this wasn’t brought up in the trial court, so we’re not going to address it. Luckily, the big one was, but you know, as a trial lawyer, you have to be thinking, “Are there constitutional issues here that need to be raised?”

Another big one is time limits. There are a lot of courts… a lot of places where I practice in the DFW area, and I’m sure it is the same throughout the state that impose strict time limits on your cases. I know, um, I’m seeing protective order hearings in Collin County, limited to 30 minutes a side. That is. Nothing when we are talking about preserving or taking away someone’s constitutional liberty interests, I know there are some, at least there’s at least one court in Dallas County that will limit your trial and a modification to 30 minutes total, I think. That is nothing, there is no way you can put on a case in that time limit, but. If you don’t object and you don’t get something in the record about the evidence that you would have put on had you had more time, you are not going to be able to succeed on an appeal on that issue.

It can be really tricky when they don’t want to let you do an offer of proof that’s going to take up the amount of time because their whole reason for the time limits is restricting your time, right? So, if you are going to have a severe time limit. I would recommend filing an objection in advance and laying out, through affidavits, through sworn testimony that I would put on all of this type of evidence if I had the time to do it.

With a protective order, there are a lot of time limits on not just the time of, you know, you get 30 minutes a side for the trial, but time limits about how long a court has to have a hearing on it. You don’t have time to do discovery. You don’t have time to, you know, subpoena witnesses to appear or things like that if you don’t object in advance to those things and put on an offer of proof as to why this is a constitutional violation, there’s nothing we can do with that on appeal.

Sometimes we can come back after the fact and do a motion for new trial and raise those issues. But if your motion for new trial isn’t granted, are you going to really be able to raise them on an appeal? Maybe, maybe not. It depends what the issues are. It depends how obvious it is that they should have been raised sooner, actually during the trial. And it depends, what did you do to create a record of your claims on the motion for new trial?

So those all really relate to preserving the record. It’s a very big overarching topic, but it’s so, so important and it’s critical that trial lawyers do these things correctly.

There are a couple of other big ones that I want to talk about. Um, findings of fact and conclusions of law. I did a whole podcast on this topic a while ago. You can go find it if you want to get into bigger, in-depth detail on findings of fact and conclusions of law. But the biggest piece I want people to understand here is that the deadline is 20 days after the order is signed.

I see a lot of attorneys who mistakenly think that it’s 30 days because the deadline to file a motion for new trial is 30 days. If you miss the deadline to request findings of facts and conclusions of law, there is virtually no opportunity to get that deadline extended. There is an exception to if you didn’t have notice of the judgment, but that’s a whole other topic for another day. But if you miss this, you can, it can be fatal to your appeal.

There are certain types of issues, factual sufficiency issues, where if there are no findings of fact and conclusions of law, the court of appeals is going to presume all of the necessary findings to support the judgment, so, if you fail to request it, you lose.

So, the first request for findings of facts and conclusions of law is not necessarily going to be enough to preserve this issue for you. A lot of courts, I’ve had a judge tell me they will not do this until you file a notice of past due findings of facts and conclusions of law.

If the trial court misses its deadline and does not file them super common. I can’t tell you the last time a trial court met this deadline on an appeal that I was working on. You must follow up and timely file your notice of past due findings of fact and conclusions of law. If you do not do this, your complaint is waived and as to certain appellate issues, it is fatal and you will lose.

Now once the judge does findings of fact, conclusions of law, assuming that they actually do… They don’t always… You might need to object or request additional findings. It really depends on what is in there. Whether or not that’s something you need to do, but you need to be aware of that deadline and you need to be aware of when do you have to file that additional request? It’s kind of a strategic decision depending on what the issues are, but the deadline cannot be waived.

The other mistake I’ve seen people making recently with respect to deadlines relates to the filing of a notice of appeal. So, if there is no request for findings of fact and conclusions of law, and there is no motion for new trial, a notice of appeal is due within 30 days of when the order is signed. However, if a request for findings of facts and conclusions of law was made, or if a motion for new trial or motion to reconsider something like that was filed, the deadline is extended. The deadline is 90 days after the date the order was signed.

The deadline is not 30 days after the motion for new trial is denied. I have seen some very good trial lawyers make this mistake recently and when someone comes to me and it’s within 30 days of denial of motion for new trial, but it’s not within 90 days of that order being signed, there’s not a whole lot that I can do. There could be a limited opportunity to extend that deadline if you request it within 15 days, but you really want, you do not want to miss these deadlines. 90 days from the date of the order. You have to file your notice of appeal.

So I hope this was helpful for you family law trial lawyers out there. If any of you, if you ever want to talk about a possible appeal or some appellate issues, feel free to reach out to me. I love talking to other lawyers. I don’t charge other lawyers for consultation on possible appeals, so feel free to reach out. I would love to help you and your clients. Bye.

Announcer: The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law and appellate matters.

For more information, visit our [email protected].