Preventing Nightmares: Preserving Issues and Avoiding Waiver at Trial (On Demand Seminar)

MCLE Credits: 2.0
Ethics Credits Included: 0.0

MCLE Credit: 2.0 (Ethics: 0.0)
Live-Interactive Credit: 0.0
Designation Credit: 2.0 Trial Practice/Litigation (Designations Information)
Price: $149 (Includes a downloadable audio version.)
Viewable Through: 12/31/2023


A pre-recorded streaming video replay of the September 2020 webcast, Preventing Nightmares: Preserving Issues and Avoiding Waiver at Trial.

Topics Covered

  • Learn the necessary techniques to preserve issues for appeal
  • Understand the traps, and how to avoid them
  • Stay current with an explanation of the most recent cases, presented by outstanding appellate lawyers

Trial Techniques That Lead to Successful Appeals

All too often, lawyers arrive in appellate courts with a solid argument for reversal, only to learn that their promising issue has been waived by a failure to preserve it in the trial court. In this program, two experienced appellate lawyers explain some of the ways to avoid having to answer troubling waiver questions at the appellate lectern. The program focuses on hidden waiver traps and on the contemporaneous objection rule, recognizing the fact that preservation isn’t an appellate skill: it’s a trial-court skill.

This seminar returns with all NEW nightmares. It will explore all the basic rules associated with issue preservation, and focus specifically on the many traps for the unwary. In addition, our speakers will examine the most recent rulings of the Supreme Court of Virginia and Court of Appeals of Virginia as they affect trial practice and appellate preservation, including:

  • Robinson v. Commonwealth: When the client and lawyer disagree, who handles preservation?
  • Mackey v. McDannald: The importance of citing the right statute
  • Butcher v. Commonwealth: When a nonbinding concession of law can hurt you
  • Cromartie v. Billings: A painful lesson on the importance of cross-error
  • Cilwa v. Commonwealth: Collateral attacks on a lack of active jurisdiction
  • Brayboy v. Durrette: How not to respond to a demurrer
  • Young v. Commonwealth: When is an objection not an objection?
  • Cherry v. Lawson Realty: The stapler method of preservation
  • Williams v. Swenson: Those risky continuing objections
  • D&MRE, LLC v. Kyus Ents.: The intersection of transcripts and nunc pro tunc orders
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L. Steven Emmert, Sykes, Bourdon, Ahern & Levy, PC / Virginia Beach
Kevin E. Martingayle, Bischoff Martingayle, PC / Virginia Beach


Steve Emmert is a partner with the Tidewater firm of Sykes, Bourdon, Ahern & Levy, where he limits his practice to appellate advocacy, primarily in the Supreme Court of Virginia. He is the founder and past chairman of the Virginia Bar Association’s Appellate Practice Section, and the past chairman of the Virginia State Bar’s Appellate Practice Committee. He is a past chair of the Boyd Graves Conference and is a member of the national executive committee of the American Bar Association’s Council of Appellate Lawyers. Mr. Emmert is listed in The Best Lawyers in America in the category of Appellate Law, and is rated AV by Martindale-Hubbell. He is a Phi Beta Kappa graduate of Richmond College and received his law degree from the University of Virginia. He lives in Virginia Beach with his wife, operatic contralto Sondra Gelb; they have one slightly spoiled daughter, Caroline.

Kevin E. Martingayle served as the 2014-15 president of the Virginia State Bar. He has served on the VSB Council, Executive Committee, Standing Committee on Legal Ethics, Professionalism Faculty for new lawyers and law students, Special Committee on the Future of Law Practice, Education of Lawyers Section Board of Governors, American Bar Association Standing Committee on Professionalism, Virginia Trial Lawyers Association Ethics and Professionalism Committee, and the Lawyers Helping Lawyers Board of Directors. In addition to maintaining a busy trial and appellate practice at Bischoff Martingayle PC, Mr. Martingayle is an adjunct law professor at William & Mary Law School. He lives in Virginia Beach with his wife, Elisabeth. They have 3 children, two of whom are college student-athletes and one of whom is a senior student athlete in high school.

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