More Than a Footnote: What the Fourth Circuit Expects From Trial and Appellate Lawyers
One of the hallmarks of skilled appellate advocacy is knowing when an argument is properly preserved. Whether you’re on the offensive or defensive side of an appeal, identifying preserved (and unpreserved) issues can make or break your case.
Because the Fourth Circuit issues relatively few precedential opinions, it can be tough to find clear, reliable guidance on how to preserve issues for appeal. This article highlights three recurring preservation pitfalls, outlines the rules that apply, and offers practical suggestions for staying out of trouble when waiver or forfeiture becomes a concern.
1. Motions in limine can preserve issues — but not always.
Trial lawyers frequently rely on motions in limine to streamline evidentiary rulings and keep trials running smoothly. But beware: in the Fourth Circuit, simply filing a motion in limine doesn’t automatically preserve the issue for appeal.
Take United States v. Williams, 81 F.3d 1321 (4th Cir. 1996). There, the defendant asked the trial court to resolve any spousal privilege concerns in a sidebar conference if they arose. The court never ruled on the motion, and when the defendant’s wife testified, the defense made no objection.
On appeal, the defendant tried to argue that the testimony was privileged. The Fourth Circuit rejected the argument — not because it lacked merit, but because it wasn’t preserved. The motion didn’t directly challenge the admissibility of the testimony, and no ruling was ever made. Worse still, no objection was lodged when the evidence came in.
The takeaway: a motion in limine preserves an issue only when (1) the exact argument raised on appeal was squarely presented to the trial court and (2) the court issued a definitive ruling on it. If the trial court’s response is unclear or the motion is denied, you’ll need to object again during trial to keep the issue alive.