Crafting a compelling motion or presenting arguments at trial can be akin to gazing into a crystal ball, attempting to foresee the pivotal issues that will sway the outcome. Often, determining which argument will resonate most profoundly proves to be an intricate puzzle. What initially appears pivotal can swiftly fade into insignificance, while seemingly inconsequential issues morph into the linchpins of the case. The failure to preserve these seemingly minor issues can lead to missed opportunities and potential losses in court, underscoring the importance of preservation in litigation.
Wild v Catholic Health System (21 NY3d 951 [2013]) is an example of the effects of a failure to preserve an argument. The Wild plaintiff, employing the “loss of chance” theory of causation, secured a favorable verdict. At the trial, the defendant did not argue that while the Appellate Division had adopted the loss of chance doctrine, the Court of Appeals had never adopted or rejected the doctrine. Because New York’s mid-level appellate courts agreed that the loss of chance doctrine was a valid legal theory, the defense lawyers would not be unreasonable in assuming that they would lose an argument that the doctrine is invalid under New York law and did not bother to articulate it. After all, so few cases make their way to the Court of Appeals that it is hard to imagine that one specific case will make its way to New York’s highest court while the parties are in the throws of a trial. But that happened in Wild, and the Court of Appeals heard the case. The pivotal moment arrived not during the briefing before the Court of Appeals or the jury’s reading of the verdict but earlier, during the trial’s charge conference. The Court of Appeals, in refusing to consider the defendant’s argument, underscored the importance of preservation when it held that the defendant waived the argument that the loss of chance doctrine is not consistent with New York law (see Wild v. Catholic Health Sys. (21 NY3d 951, 954 [2013]).
Preservation entails presenting evidence or arguments to the trial court for appellate review. However, navigating unpreserved issues becomes intricate—some points remain arguable, while others get waived.
The Appellate Division can address arguments not raised before the lower court in appeals concerning motions. However, to take advantage of this discretion, the litigant’s appellate argument must be (1) a purse question of law, (2) that is based on the facts in the record, and (3) the other side could not have avoided the argument if it was raised before the motion court (see Wediner v Basser-Kaufman 228, LLC, 212 AD3d 684 [2d Dept 2023]). Since most appeals end at the Appellate Division, this exception will apply to most cases. However, unlike the Appellate Division, the Court of Appeals does not consider arguments not raised before the motion court. “In general, arguments, including constitutional challenges, are preserved only if presented at the trial court level” (Henry v New Jersey Transit Corp., 39 NY3d 361, 367 [2023]).
As to trial practice, a litigant can waive many arguments at appeal if they did not raise them at the trial. For example, failure to timely request a mistrial can, and most often does, result in a waiver (see Yu v New York City Health and Hospitals Corp., 191 AD3d 1040 [2d Dept 2021]). The reason for such a rule is to foster judicial economy. “Counsel may not be permitted to speculate upon whether a verdict will be favorable, before asserting a claim for a mistrial” (Schein v Chest Service Co., 38 AD2d 929 [1st Dept 1972]). Similarly, an objection to an inconsistent verdict is waived if the objection is not made before the jury is discharged (see Berner v Little, 137 AD3d 1675 [4th Dept 2016]).
Preservation is not just a legal principle that applies at the Appellate Division or Court of Appeals. It can also be a powerful tool for maximizing the pivot points of litigation for settlement purposes. By being mindful of preservation, one can present their adversary with multiple quality arguments for an appeal, adding pressure to resolve the matter sooner. This proactive approach can empower litigators, giving them an upper hand in negotiations.
Enlisting the expertise of appellate counsel for significant motions and trial preparation can serve as a safety net, preventing the inadvertent waiving of arguments. With their ability to provide developed facts, appellate counsel can construct various legal arguments. This collaborative approach ensures preservation and strengthens leverage points for case resolution. This reassurance can help litigators navigate the complexities of litigation with confidence.
Preservation is not merely an indicator of success on appeal. It is an indicator of the ability to resolve the case successfully. If arguments are preserved for appeal, they can be used on a motion, at a trial, or at a mediation, which can avoid the time and expense of trials and appeals.
At The Law Offices of Seth M. Weinberg, PLLC, we help litigators develop a strategic advantage that goes beyond the courtroom. Contact us to discuss your case and how we can assist you in achieving the best result possible.