We have been discussing that issues must be raised in the trial court to later be raised on appeal. This series of posts focus on how and when the issues must be raised.
This post first covers how an issue must be raised: it must be raised on the record.
Issues raised off the record, either in a judge’s chambers or at a side bar conference, do not preserve an issue for appellate review. To preserve an issue for appellate review, a party must later put on the record the objection, its grounds, and the court’s ruling. Davis v. Davis, 372 S.C. 64, 86-88, 641 S.E.2d 446, 457-458 (Ct.App. 2006).
We also need to make sure that any supporting evidence makes its way into the record. On the record statements by counsel are not enough. In McManus v. Bank of Greenwood, 171 S.C. 84, 89, 171 S.E. 473, 475 (1933), the Supreme Court observed: “This court has repeatedly held that statements of fact appearing only in argument of counsel will not be considered.” See also Sessions v. Withers, 327 S.C. 409, 414, 488 S.E.2d 888, 891 (Ct.App. 1997) (disregarding counsel’s recitation of deposition testimony that was not presented to the trial court); Gilmore v. Ivey, D.C., 290 S.C. 53, 58, 348 S.E.2d 180, 184 (Ct.App. 1986)(same).
Has anyone else out there caught opposing counsel trying to go outside the record? Please share your experiences with us. You may leave a reply or reach me at www.attorneyroberthill.com.