Preventing Nightmares: Preserving Issues and Avoiding Waiver at Trial

A pre-recorded streaming VIDEO replay of the February 2026 webcast, Preventing Nightmares: Preserving Issues and Avoiding Waiver at Trial.

Often lawyers take on an appeal believing they have 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 lawyer. 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:

• Amazon Logistics, Inc. v. Virginia Employment Commission: Insufficient briefing, approbate/reprobate doctrine
• Commonwealth v. Carolino: Failed to assign error to all bases of ruling
• Sidar v. Doe: Untimely Rule 1:1A filing because clerk would not accept filing
• Cappe v. Commonwealth: Cannot merely “cut and paste” in assignments of error presented to the SCV after losing in the CAV
• Harris v. Howard: error for an appellate court to reverse for a reason not argued in the trial court
• Doe v. Green: An appellant may not cite new authority in support of an argument if it is actually a new argument that wasn’t presented to the trial court
• Harwood v. Chinchilla: Voluntary payments made prelitigation may not be recovered from the payee even if the purported payment obligation is later determined by the court to be void or unenforceable
• Pollack v. Virginia State Bar: Insufficient briefing will doom an appeal; arguments presented for the first time on appeal are waived

Kevin E. Martingayle, Bischoff Martingayle, PC / Virginia Beach

Kevin E. Martingayle is a co-founder of Bischoff Martingayle, PC, and served as the 2014-15 president of the Virginia State Bar. He has served on the VSB Council, Executive Committee, Mandatory Continuing Legal Education Board, 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. He is also a past chair of the VTLA’s Appellate Practice Section. Mr. Martingayle is a graduate of Hampden-Sydney College with a degree in Economics (Cum Laude, Phi Beta Kappa) and the University of Virginia School of Law.

Juli M. Porto, Blankingship & Keith, PC / Fairfax

Juli M. Porto is a partner at Blankingship & Keith, PC, and handles cases at both the trial and appellate levels. At the appellate level, she handles a wide range of civil matters. In addition to bringing and defending appeals, she consults with trial attorneys to develop legal theories of recovery and draft complaints, brief and argue dispositive and post-trial motions, and monitor trials as embedded appellate counsel. At the trial level, she devotes her practice to personal injury matters with complex liability issues. Ms. Porto is a member of the Virginia Bar Association’s Appellate Section Council and the Virginia Trial Lawyers Association’s Amicus Committee. She graduated as an Honors Scholar from New York University with a degree in Economics and earned her law degree from George Mason University School of Law. You can follow her blog, which focuses on civil matters in the Court of Appeals, at virginiaappeals.org.