Preserving Issues and Avoiding Waiver at Trial: How to Prevent Nightmares (On Demand Seminars)

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: 02/28/2026


A pre-recorded streaming VIDEO replay of the April 2023 webcast, Preserving Issues and Avoiding Waiver at Trial: How to Prevent Nightmares.

Topics Covered

  • Review the necessary techniques to preserve issues for appeal
  • Understand some of the hidden waiver traps and how to avoid them
  • Explore examples drawn from the most recent cases with two experienced appellate lawyers

Trial Techniques That Lead to Successful Appeals

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 is not an appellate skill: it is a trial-court skill.

This seminar returns with all NEW nightmares. It explores the basic rules associated with issue preservation and focus specifically on the many traps for the unwary. Our speakers also 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:

  • Berry v. Fitzhugh: Manchester Oaks waiver
  • McClary v. Jenkins: Insufficient allegations of standing
  • Sheehy v. Williams: Voluntary payment doctrine
  • Kenner v. Commonwealth, Robol v. Virginia State Bar: Delayed juror polling; defense in attorney discipline
  • Galloway v. Northampton County: Timely objections to discovery-response defects
  • McMurtrie v. McMurtrie: Too-narrow appellate issue selection
  • Kosko v. Ramser: Post-finality costs awards
  • Lucas v. Riverhill Poultry: Pretrial rulings “without prejudice”
  • Hawkins v. South Hill: Objection without a motion
  • Isle of Wight County v. International Paper: Intentionally limiting appellate remedies
  • Ruderman v. Pritchard: Amendment that exceeds jurisdiction equals void judgment for winning plaintiff
  • Mintbrook Developers, LLC v. Groundscape: Defendant’s admitted knowledge vanquishes plaintiff’s technical pleading violation
  • Yazdani v. Sazagar: No waiver of the right to appeal a fee award, but a frivolous appeal equals getting hammered with more fees
  • Boyd v. Weisberg: Agreed jury instructions and verdict form, lack of timely arguments and objections, and new arguments on appeal equals multiple waivers
  • Brown v. Commonwealth: Failure to identify the legal right violated


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L. Steven Emmert, Sykes, Bourdon, Ahern & Levy, 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, Bischoff Martingayle / Virginia Beach

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, all of whom are students-athletes at the collegiate level.

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