Going Up? Don t Forget To Take Your Issues: The Preservation Rule

Transcription

1 Ging Up? Dn t Frget T Take Yur Issues: The Preservatin Rule I. Utah s Preservatin Rule Litigatin Department Training Presentatin Parsns Behle & Latimer s Appellate Practice Grup May 27, 2014 What is the preservatin rule? Utah appellate curts, and appellate curts generally, have a self-impsed rule that a claim nt preserved in the trial curt cannt be raised n appeal. 1 Rule 24 f the Utah Rules f Appellate Prcedure: The appellant must prvide a citatin t the recrd shwing that the issue was preserved in the trial curt. 2 What des it mean fr an issue t be preserved? Three elements fr preservatin: The issue must be raised in a timely fashin; The issue must be specifically raised; and The party must intrduce evidence r legal authrity in supprt. 3 Curts generally apply the ntice-pprtunity test: The appellant must have put the trial curt n ntice f the asserted errr such that the curt had an pprtunity t crrect the errr r therwise rule n the issue. 4 The difficulty is the Gldilcks issue: Appellants want t specifically preserve an issue, but nt s specifically that they are freclsed frm raising related, ancillary issues. 1 Tschaggeny v. Milbank Ins. C., 2007 UT 37, 18, 163 P.3d Utah R. App. P. 24(a)(5)(A). 3 Badger v. Brklyn Canal C., 966 P.2d 844, 847 (Utah 1998) 4 Id.

2 Example: A party timely raises an issue regarding Part X f a jury instructin, but fails t als pint ut a flaw in Part Y. Appellants als d nt want t be s general that the issue lacks specificity. A party may nt preserve an issue by merely mentining it. 5 Example: A party challenges the sufficiency f the evidence supprting a claim, but fails t identify a particular element fr which the evidence fell shrt. Appellants want the issue t be just right fr preservatin. Why are appellate curts s cncerned with preservatin? Practical Standpint: An unpreserved argument is much easier t dispse f. Many judges d nt want t spill any mre ink than they have t. Many judges see it as their duty nt t create any law that des nt have t be created. Plicy Standpint: There are multiple plicy reasns supprting the preservatin requirement. Judicial Ecnmy The preservatin rule requires a party t present his entire case and his thery... f recvery t the trial curt. 6 This allws fr a recrd that the appellate curt can review. Als, it may be that the trial curt culd easily have reslved the issue, r the ppsing party culd have cuntered it cnvincingly, aviding the time and expense f appeal. If curts rutinely reviewed unpreserved issues that culd have been reslved belw, it wuld incentivize mre appeals and shddy trial preparatin. 5 In re Guardianship f A.T.I.G., 2012 UT 88, 21, 293 P.3d Pattersn v. Pattersn, 2011 UT 68, 15, 266 P.3d

3 Fairness Appellate curts view it as unfair t reverse a trial curt n a basis that was never presented t the trial curt. Under ur adversary system, the respnsibility fr detecting errr is n the party asserting it, nt n the curt. 7 Curts view it as unfair t the appellee, wh wn n the issue belw. Appellate curts are cncerned that parties d nt raise issues fr strategic reasns, and then assert the issues n appeal after their trial strategy failed. Curts d nt want t reward such crafty strategies. Is preservatin a jurisdictinal requirement? N. The rule is self-impsed and is therefre ne f prudence rather than jurisdictin. 8 Des it make a difference that it is nt jurisdictinal? Yes. A curt is much mre likely t tweak, bend, r massage a rule if it is self-impsed and based n plicy, but nt if it is jurisdictinal. A curt might be mre willing t directly review an arguably unpreserved issue if It is really, really imprtant (i.e., ne that affects lives rather than pcketbks). Think adptins, criminal cnvictins, etc. Bending the rules will nt ffend the plicies that underlie the preservatin rule: fairness and judicial ecnmy. Smewhere in the recrd the appellant at least tangentially raised the argument. This is usually cmbined with the really, really imprtant factr. 7 Id Id

4 Is an unpreserved argument frfeited r waived? This is a trick questin. There is a difference between frfeiture and waiver, and the distinctin matters n appeal. 9 If a party merely failed t assert an issue, it is frfeited. A frfeited issue is unpreserved fr appeal. It is reviewable, but, as Alan will explain, is reviewed under a heightened standard. If a party vluntarily and purpsely relinquished an issue, it is waived. A waived argument is generally unreviewable. The Tenth Circuit has been mre explicit with this distinctin: Where... a plaintiff pursues a new legal thery fr the first time n appeal, that new thery suffers the distinct disadvantage f starting at least a few paces back frm the blck. If the thery was intentinally relinquished r abandned in the district curt, we usually deem it waived and refuse t cnsider it. 10 Is there a difference between preserving an issue, argument, claim, matter, etc.? N. Althugh sme jurisdictins recgnize a distinctin between new issues r theries and new arguments, allwing the latter but nt the frmer t be raised fr the first time n appeal, Utah curts have expressly declined t recgnize this distinctin. The terms are used interchangeably. 11 Examples Example 1: In the trial curt, Party A argues that an amendment t a trust is valid. The party asks the trial curt t distinguish r verturn a ptentially damaging Utah Supreme Curt decisin under which the amendment is almst certainly invalid. But Party A fails t raise the issue f a new statute that abrgates the Utah Supreme Curt decisin. Did Party A preserve an argument that the statute gverns and abrgates the Utah Supreme Curt decisin? 9 See In Re Adptin f Baby EZ, 2011 UT 38, 51, n.1., 266 P.3d 702 (Lee, J., dissenting). 10 Richisn v. Ernest Grp., 634 F.3d 1123, 1127 (10th Cir. 2011). 11 Pattersn, 2011 UT 68, 14. 4

5 Answer: The issue f the validity f the trust amendment was preserved, and it des nt matter that Party A failed t raise certain authrity fr the argument challenging the Utah Supreme Curt decisin. Qute: [W]e rutinely cnsider new authrity relevant t issues that have prperly been preserved, and we have never prevented a party frm raising cntrlling authrity that directly bears upn a prperly preserved issue. Further, we are unwilling t disregard cntrlling authrity that bears upn the ultimate reslutin f a case slely because the parties did nt raise it belw. 12 Example 2: Take-away: If yu accidentally failed t cite the winning case r statute, yu still may use it n appeal s lng as yu framed the issue belw. Party B fails t file a respnse t Defendant s mtin in limine t exclude written-ff medical expenses. Party B tells the curt that the mtin prbably des nt need an ppsitin, and the curt grants the mtin in limine. On the mrning f trial (3 mnths after the mtin in limine ruling), Party B asks the curt t recnsider the mtin in limine, citing the cllateral surce rule. The curt denies the mtin as untimely, but asks Party B if he wuld like a cntinuance fr the curt t cnsider the merits f the mtin. Party B declines, and the trial prceeds withut evidence f written-ff medical expenses. 13 Did Party B preserve a challenge t the mtin in limine? Answer: N. The chice nt t seek a cntinuance cnstituted a failure t preserve the issue fr appeal. Had Party B requested a cntinuance, this culd have given the curt time t rule n the merits f the mtin, and thereby preserve the issue fr appeal. Nt nly was the argument unpreserved, it was abandned i.e., it was waived. 12 Id. 18; see als Trian v. Craig, 2012 UT 63, 20, 289 P.3d 479 ( A litigant has n bligatin t preserve his citatin t legal authrity. If the fundatin f a claim r argument is presented in a manner that allws the district curt t rule n it, a party challenging the lwer curt s reslutin f that matter is free t marshal any legal authrity that may be relevant t its cnsideratin n appeal. ). 13 Tschaggeny, 2007 UT 37. 5

6 Take-away: Even if yur mtin is untimely, file it if yu think it is a ptential winner. But if the curt wants mre time t rule, give the curt mre time. II. Preservatin Cnsideratins in Pre-trial Stage Make an appellate battle plan in early stages f prceeding. Cnsider the legal theries at issue in yur case, including the elements f each cause f actin and defense yu plan t allege, as well as the ther side s theries. Cnsider whether the case presents any cnstitutinal claims, which are f interest t appellate curts and mre likely t receive their attentin. A party may nt lse in the district curt n ne thery f the case, and then prevail n appeal n a different thery. Cntradictry theries nt preserved. Even related theries are typically insufficient, e.g.: Negligent failure t warn/negligent design Breach f cntract/trtius cnversin f negtiable instrument Always cnsider what is in the recrd and what is nt in the recrd. Remain mindful f recrd preservatin as yu mve thrugh stages f discvery, pretrial mtins, and hearings. An issue that appears in an Answer, the pre-trial rder, r even in memranda may nt be preserved if nt apprpriately pursued in the trial curt. Crrect any misstatement f fact f the Curt r f ppsing cunsel, even if made in mtins r hearings, as these can cme back t frame the issues and even frame the statements f fact in the appeal. Summary Judgment Remember that sme pre-trial issues in the summary judgment cntext may becme un-appealable after a jury has rendered a verdict. Appellate curts may review the denial f a pretrial summary judgment mtin if the mtin was decided n purely legal grunds. Nrmandeau v. Hansn Equipment, Inc., 2009 UT 44, 219 P.3d 152 Where the curt denies the mtin based n the undisputed facts, rather than because f the existence f a disputed material fact, the 6

7 party denied summary judgment may challenge that denial n appeal withut having raised it at trial in a directed verdict mtin. When disputed facts bear n the decisin r when new material facts emerge at trial that change the nature f the legal determinatin, parties then have an bligatin t reraise the issue at trial in rder t preserve it fr appeal. Hne v. Advanced Shring & Underpinning, Inc., 2012 UT App 327: Whether a summary judgment decisin is reviewable is a case by case inquiry that requires the curt t cmpare evidence presented in cnnectin with the summary judgment mtin with the evidence adduced at trial. Objectins t Evidence: DUCivR 7-1(b)(1) Fr mtins fr which evidence is ffered in supprt, the respnse memrandum may include evidentiary bjectins. If evidence is ffered in ppsitin t the mtin, evidentiary bjectins may be included in the reply memrandum. While the curt prefers bjectins t be included in the same dcument as the respnse r reply, in exceptinal cases, a party may file evidentiary bjectins as a separate dcument. If such an bjectin is filed in a separate dcument, it must be filed at the same time as that party's respnse r reply memrandum. If new evidence is prffered in supprt f a reply, any evidentiary bjectin must be filed within seven (7) days after service f the reply. A party ffering evidence t which there has been an bjectin may file a respnse t the bjectin at the same time any respnsive memrandum, if allwed, is due, r n later than seven (7) days after the bjectin is filed, whichever is lnger. Mtins t strike evidence as inadmissible are n lnger apprpriate and shuld nt be filed. The prper prcedure is t make an bjectin. See Fed. R. Civ. P. 56(c)(2). Can be difficult t d in Reply memranda due t page limitatins. III. Preserving Objectins t Jury Instructins Make bjectins n the recrd and prir t submissin f instructins t jury. FRCP 51(c)(1): A party wh bjects t an instructin r the failure t give an instructin must d s n the recrd, stating distinctly the matter bjected t and the grunds fr the bjectin. FRCP 51(b)(2): The curt must give the parties an pprtunity t bject n the recrd and ut f the jury s hearing befre the instructins and arguments are delivered. 7

8 URCP 51(f): Objectins t written instructins shall be made befre the instructins are given t the jury. Objectins t ral instructins may be made after they are given t the jury, but befre the jury retires t cnsider its verdict. The curt shall prvide an pprtunity t make bjectins utside the hearing f the jury. Unless a party bjects t an instructin r the failure t give an instructin, the instructin may nt be assigned as errr except t avid manifest injustice. (emphasis added) At trial, the district curt errneusly held initial jury instructin cnferences ff the recrd with inadequate prcedures fr preserving the bjectins fr appellate review. In its affidavit, the district curt averred that [defendant] stated n the recrd his reasns fr his bjectin. On the cntrary, [defendant s] statements during the n the recrd jury instructin cnference did nt qualify as prper bjectins t the instructin. [Defendant] knew the cnferences were ff the recrd. Thus, he knew, r shuld have knwn, that he needed t prperly renew his bjectin n the recrd t preserve it fr appeal. United States v. Brnfield, 184 F.3d 1144, 1146 (10th Cir. 1999) (citatins mitted). Objectins t jury instructins must be specific. It is nt enugh t generally bject t the instructins as a whle r even t a particular instructin withut any particularity. It als nt enugh t ffer a prpsed alternative instructin. URCP 51(f): In bjecting t the giving f an instructin, a party shall identify the matter t which the bjectin is made and the grunds fr the bjectin. When cnsidering a party s challenge t jury instructins, ur initial inquiry is whether the party prperly preserved that issue fr appeal by bjecting at the district curt level t the instructin n the same grunds raised n appeal. A party s bjectin t a jury instructin must be sufficiently clear such that the grunds stated in the bjectin [are] bvius, plain, r unmistakable. Aspen Highlands, 738 F.2d at Mrever, the ffering f a prpsed instructin des nt preserve a challenge t the curt s instructins under Rule 51, absent a specific bjectin. Id. at Cmca, Inc. v. NEC Telephnes, Inc., 931 F.2d 655, 660 (10th Cir. 1991). As set frth abve, rule 19(c) f the Utah Rules f Criminal Prcedure prvides that in rder t preserve an issue invlving a jury instructin, the bjecting party must make an bjectin in the trial curt, stating distinctly the matter t which he bjects and the grund f his bjectin. Utah R.Crim. P. 19(c) (emphasis added). This rule therefre requires that (1) an bjectin be made in the trial curt t the particular instructin, and (2) that the bjecting party state all the grunds fr his r her bjectin. Accrdingly, absent a shwing f manifest injustice, nt nly will we 8

9 refuse t review jury instructins t which the party did nt bject in the trial curt, but we will als refuse t cnsider grunds fr errr which were nt raised r asserted in the curt belw. State v. Rudlph, 970 P.2d 1221, 1227 (Utah 1998). If yu want a different instructin, be sure t ffer it t the Curt and then specifically bject if prpsed instructin is rejected. [Appellant] did nt preserve this claim fr appellate review. A party wh des nt request a jury instructin cannt later cmplain that it was nt given. State v. Sules, 2012 UT App 238, 286 P.3d 25, 27. [T] assert that the trial curt erred in either giving r failing t give an instructin, a party must first submit crrect instructins and then, shuld the curt fail t give them, timely except. Pauls v. Cvenant Transp., Inc., 2004 UT App. 35, 10, 86 P.3d 752. When bjecting t the failure t include a prpsed jury instructin, the prpsed instructin must be specifically ffered t the Curt and rejected. It is nt enugh t ffer a similar instructin. At trial, Defendant did nt request a lesser-included ffense instructin nr did he bject t the trial curt's failure t include a lesser-included ffense instructin in its prpsed jury charge. Instead, defense cunsel requested a merger dctrine instructin based n Finlaysn, 2000 UT 10, 994 P.2d On appeal, Defendant argues that the trial curt erred by refusing t give Defendant's requested jury instructin explaining the lesser-included relatinship between aggravated kidnapping and aggravated assault. Defendant cnflates the merger dctrine with the lesser-included ffense legal cncept. The jury instructin Defendant requested pertained t his merger dctrine argument and instructed the jury n the merger dctrine nt the cncept f a lesser-included ffense. State v. Zaragza, 2012 UT App 268, 287 P.3d 510, 513. If an bjectin is nt preserved, the manifest injustice/plain errr standard n appeal is difficult t meet. When reviewing a claim f manifest injustice, we generally use the same standard that is applied t determine whether plain errr exists under rule 103(d) f the Utah Rules f Evidence. See State v. Verde, 770 P.2d 116, (Utah 1989). That standard is tw-prnged. First, the errr must be bvius. Secnd, the errr must be f sufficient magnitude that it affects the substantial rights f a party. Andersn, 929 P.2d at State v. Rudlph, 970 P.2d 1221, 1226 (Utah 1998). 9

10 Even if there is plain errr r manifest injustice in a jury instructin, if trial cunsel indicates agreement with the instructin, then appellate curts might nt reverse based n the invited errr dctrine. [T]he supreme curt has held repeatedly that n appeal, a party cannt take advantage f an errr cmmitted at trial when that party led the trial curt int cmmitting the errr. Andersn, 929 P.2d at 1109 (citatin mitted) (cncluding any errr in giving a jury instructin was invited errr because defense cunsel read the instructin and then affirmatively stated that she had n bjectin ). State v. Rush, 2003 UT App 156. [T]he trial curt gave defendant ample pprtunity t bject t the jury instructin[s] r t request a lesser included ffense jury instructin, and he failed t d s. Cnsequently, we cnclude that this defendant cannt lead the curt int errr by failing t bject and then later, when he is displeased with the verdict, prfit by his actins. State v. Rush, 2003 UT App 156 (citatins mitted). IV. Plain Errr Is plain errr r exceptinal circumstances the required standard f review? Ways t avid preservatin bstacles: Claim vs. Argument Utah In Pattersn v. Pattersn, the Utah Supreme Curt explained that, althugh sme curts had drawn a distinctin between issues and arguments, it declined t d s UT 68, 14, 266 P.3d 828. Federal Lebrn v. Nat l R.R. Passenger Crp., 513 U.S. 374, 379 (1995) (addressing an argument Lebrn raised fr the first time in the Supreme Curt because it was merely a new argument t supprt what ha[d] been his cnsistent claim ) Yu may be able t avid the plain errr death trap if yu can plausibly claim that yu are merely adducing additinal supprt fr [yur] side f an issue upn which the district curt did rule, much like citing a case fr the first time n appeal. Kch v. Cx, 489 F.3d 384, 391 (D.C. Cir. 2007). 10

11 Jury Instructins Pint ut that the new pint is purely legal, and des nt depend n predicate facts. Pattersn, 2011 UT 68, 20. Try t demnstrate that the failure t raise the issue/argument belw was inadvertent rather than tactical. Id. 20. Civil Federal Rule f Civil Prcedure 51(d)(2) - A curt may cnsider a plain errr in the instructins that has nt been preserved... if the errr affects substantial rights. Utah Rule f Civil Prcedure 51(f) Unless a party bjects t an instructin r the failure t give an instructin, the instructin may nt be assigned as errr except t avid a manifest injustice. Criminal Federal Rule f Criminal Prcedure 52(b) A plain errr that affects substantial rights may be cnsidered even thugh it was nt brught t the curt's attentin. Utah Rule f Criminal Prcedure 19(e) Unless a party bjects t an instructin r the failure t give an instructin, the instructin may nt be assigned as errr except t avid a manifest injustice. Manifest injustice is the equivalent f plain errr. State v. Casey, 2003 UT 55, 40, 82 P.3d In Utah, the standard fr instructinal plain errr appears t be the same in bth civil and criminal cases. Crkstn v. Fire Ins. Exchange, 817 P.2d 789, 799 (Utah 1991). The same is true in federal curt. Cmpare United States v. Gnzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005), with Diaz- Fnseca v. Puert Ric, 451 F.3d 13, 36 (1st Cir. 2006). Nn-instructinal prblems As a general rule, we will review issues raised fr the first time n appeal nly if exceptinal circumstances r plain errr exists. Salt Lake City v. Ohms, 881 P.2d 844, 847 (Utah 1994). It is the settled rule in this Circuit that issues nt raised and presented t the trial curt will nt be cnsidered n appeal, except that in exceptinal cases, where a questin f law is raised, cnsideratin will be given t prevent manifest injustice. Gmes v. Williams, 420 F.2d 1364, 1367 (10th Cir. 1970). 11

12 Three Requirements in Utah: Errr Obvius Under federal criminal law, the errr need nly be plain at the time f appellate review. Hendersn v. United States, Slip Op. n (Feb. 20, 2013). This may r may nt apply t civil cases, which d nt implicate the same liberty interests as criminal cases. An errr is bvius when it vilates cntrlling case law. It can als be bvius when it invlves a clearly errneus applicatin f statutry law and where it vilates wellsettled legal principles. Statute United States v. Stry, 635 F.3d 1241, 1248 (10th Cir. 2011). Pattersn Refusing t cnsider Randy s statutry argument in this case wuld cause us t issue an pinin in cntraventin f a duly enacted cntrlling statute. Id. 20; see als id. 21 ( [W]e decline t ignre cntrlling law because cunsel failed t argue it belw. ). Legal Principles United States v. Brwn, 352 F.3d 654, 664 (2d Cir. 2003). Prejudice Is there a reasnable prbability f a different utcme? Des the errr affect substantial rights? This means that the errr affected the utcme f the prceedings. United States v. Olan, 507 U.S. 725, 734 (1993). And smetimes a furth in Federal Curt Fairness f judicial prceedings Sme federal curts, including the Tenth Circuit, require the appellant t als demnstrate that the errr seriusly affects the fairness, integrity, r public reputatin f judicial prceedings. United States v. Gnzalez-Huerta, 403 F.3d 727, 732 (10th Cir. 2005). 12

13 The Supreme Curt added the furth requirement t accunt fr the fact that Rule 52(b) is permissive, nt mandatry. In ther wrds, a federal curt may but is nt required t crrect plain errr. United States v. Olan, 507 U.S. 725, 735 (1993). Example f curt finding the furth prng satisfied: United States v. Thmas, 274 F.3d 655, (2d Cir. 2001). Example f curt finding the furth prng unsatisfied: Gnzalez- Huerta, 403 F.3d at 738. Invited Errr Precludes Plain Errr Review As already discussed, there is a difference between waiver and frfeiture. When a party waives an issue, cunsel has invited the errr, thereby precluding plain errr review. State v. Lee, 2006 UT 5, 16. This is especially cmmn with respect t jury instructins. What des it mean t invite errr? Cunsel invites errr when she manifestly assents t the errr, even if the manifestatin is lukewarm at best. It feels gd t win! In Justice Lee s view (as expressed at the Utah Bar Cnventin last summer), the dividing line between invited errr and uninvited errr is verbal assent, a view that is basically cnsistent with the Supreme Curt s case law. See State v. Sellers, 2011 UT App 38, 12 (hlding that cunsel invited the alleged errr with the instructin because when asked if there was anything else cunsel wanted t put n the recrd, cunsel respnded, N. That s fine. ) And it may be brader: State v. Cx, 2012 UT App 234, 5 n.5 (declining t decide whether the errr was invited based n the attrney giving n verbal respnse when asked if she had anything else t add t the jury instructins ). Other curts have questined such a hard, fast, and easily satisfied standard fr invited errr, and have instead addressed, n a caseby-case basis, whether a deliberate, strategic reasn culd have justified the attrney s affirmative apprval f a jury instructin. United States v. Rucker, 417 F. App x 719, (10th Cir. 2011). Appellee is nt bund by the same preservatin principles 13

14 The appellate curt may affirm fr any reasn apparent frm the recrd, even if that reasn was nt pressed by either party belw Bailey v. Bayles, 2002 UT 58, 10, 52 P.3d This is an pprtunity t get creative Examples 14