Issues on Appeal and Preservation

In the last post, we discussed the appellate process—how a case moves through the appeals process. In this post and the next few posts which come after it, we will discuss what an appeals court does with a case and how it makes its decision. In this post, we will introduce two new concepts: issues presented and preservation.

Issues Presented

A lot of clients who want to appeal are surprised to learn that an appeal is not a full “do-over” of a trial. As discussed in the first post, an appeals court does not listen to witnesses, examine evidence, or make factual findings. Moreover, in an appeal, the court will generally [1] only focus on those aspects of the trial that the appellate lawyer tells it to. Thus, the briefs that appellate lawyers submit to the court will always include a section marked “Issues Presented,” “Questions Presented,” or “Statement of the Issues.” The style in which the issues are written and framed depends upon the requirements of the court and the appellate lawyer’s skill. Indeed, one of the skills which separates average appellate lawyers from great appellate lawyers is the ability to find issues on appeal by carefully reviewing the record and then framing those issues in a way that will be persuasive to the court of appeals judges.

Preservation

There is another important limit on what an appellate court can do when it reviews the case, with some exceptions we won’t cover today, an appellate court will not address an issue if it wasn’t brought up to the trial judge first. An attorney who raises an objection to the trial court is said to have preserved the issue for appeal. Likewise, an attorney who fails to raise an issue before the trial court is said to have forfeited or waived the issue before the court of appeals.[2]

A case decided by the Tenth Circuit a few years ago provides a very useful illustration. In United States v. Turrietta [3], the defendant was charged with assaulting an officer. The judge, however, accidentally forgot to swear the jury in before the trial. While this was very likely a mistake (and a serious one), because defendant’s lawyer did not bring the matter up with the trial judge until after the jury reached its decision, the court of appeals affirmed his conviction. The court was especially critical of the defendant’s attorney for “sandbagging” the court—waiting to raise his objection until after he knew the outcome of the trial, remarking that “the law takes a dim view of such tactics.”

Conclusion

A good lawyer plays a very important role in the success or failure of an appeal. The court of appeals is limited in what it will review by what an appellate lawyer asks it to look at, and the court will not look kindly upon lawyers who raise arguments on appeal without giving the trial court a fair chance to fix the problem first.

Notes:

[1] We use the term “generally” because it can sometimes be a matter of debate whether an appeals court “needed” to address an issue to decide a case. For example, in the controversial Citizens United decision in 2010, Justice Stevens, in dissent, argued that the majority unnecessarily reached out to decide upon the constitutionality of parts of the McCain-Feingold Act: “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

[2] There is a technical difference between “forfeiture” and “waiver.” A lawyer forfeits an issue by forgetting or failing to bring it up to the trial court. A lawyer can waive an issue by affirmatively agreeing that the court’s decision on a particular point was correct.

[3] 696 F.3d 972 (10th Cir. 2012).

* The author of this blog post, Logan R. Martin, has interned at the Colorado Supreme Court, and served as a law clerk on the United States Court of Appeals for Tenth Circuit. You can contact Mr. Martin by phone at (303) 915-5002, or by email at logan@westerfieldlaw.com.

The materials on this site are for informational purposes only and are not to be construed as legal advice. Reading or commenting on this blog does not create an attorney-client relationship. Every situation is unique, and you should consult an attorney if you have questions about your specific situation.

 

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