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2010 Neb. L. Rev. Bulletin 1 (2010)

handle is hein.journals/nelrvbu2010 and id is 1 raw text is: PRESER VA TION OF ERR OR FOR APPELLATE REVIEW By William B. Cassel* and Anneliese Wrightt Introduction At the appellate level, there are numerous instances where the court is unable to reach the substantive merits of an issue because the assigned error is not preserved in the record. The purpose of this article is to highlight the situations in which this commonly occurs and set forth the applicable procedure to preserve the error. This article is by no means intended as an exhaustive guide, but is merely designed to illustrate some of the more common issues that have appeared in reported Nebraska decisions. First, the article sets forth proper method of preserving the record, which is essential to preserving any error. Second, it explains how to preserve particular errors-evidentiary, jury instruction, and other errors-for appellate review. The third and final section sets forth the proper method of requesting the preparation of the record for appellate review. I. Making an Evidentiary Record in Trial Court There are two parts of an appellate record-a transcript and a bill of exceptions. The transcript contains the filings from the court proceeding below.1 The bill of exceptions contains the evidence that will be considered on appellate review. An appellate court may not review 2 evidence unless it has been preserved in the bill of exceptions. The official court reporter is required to make a verbatim record of the evidence offered at trial or other evidentiary proceeding . . . ,3 The record may not be waived.4 This record-the * Judge, Nebraska Court of Appeals. B.S., University of Nebraska, 1977; J.D., University of Nebraska College of Law, 1979. Judicial clerk to Hon. William B. Cassel, Nebraska Court of Appeals. B.A., Doane College, 2005; J.D, University of Nebraska College of Law, 2008. 1 See NEB. CT. R. APP. P. § 2-104 (listing contents of transcript). 2 Ottaco Acceptance, Inc.v. Huntzinger, 268 Neb. 258, 262, 682 N.W.2d 232, 236 (2004). 3 NEB. CT. R. APP. P. § 2-105(A)(1). 4 Id.

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