9.2 - A. General Principles
Jurisdiction | New York |
A. General Principles
As one noted commentator has observed: “The doctrine of preservation mandates that an issue is preserved for appellate review, and thus available as a basis for reversal or modification of an order or judgment, only if it was first raised in the nisi prius—it may not be raised for the first time on appeal.”2047 In 2008, the Court of Appeals stated that “the requirement of preservation is not simply a meaningless technical barrier to review.”2048 The doctrine rests on principles of fairness to the litigants and judicial economy. The doctrine also encourages the development of issues at the trial level, allowing appellate courts to benefit from the analysis and reasoning of the court or courts below. In People v. Jones,2049 Justice Gulotta presented perhaps the most thorough explanation of the doctrine of preservation, stating:
...The doctrine of preservation of error is a natural and familiar outgrowth of our adversarial system of justice. Concisely stated, it requires the parties to an adversary proceeding to press their claims at a procedural stage and in a manner by which they may be efficaciously determined, or otherwise forfeit their right to be heard on the issue. Often couched in terms of “waiver,” which denotes the intentional relinquishment of a known right, the doctrine is perhaps more properly conceived as a method of “procedural default,” whereby the failure to
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- 9.0 - I. Introduction
- 9.1 - II. Doctrine Of Preservation
- 9.2 - A. General Principles
- 9.3 - 1. Fairness
- 9.4 - 2. Judicial Economy
- 9.5 - B. Issues Raised For First Time On Appeal
- 9.6 - 1. Determinative New Legal Issues
- 9.7 - 2. Pure Questions Of Law Or Statutory Interpretation
- 9.8 - 3. Issues Supported By Trial Record
- 9.9 - C. Exceptions To Doctrine Of Preservation
- 9.10 - D. General Strategies For Complying With Doctrine Of Preservation
- 9.11 - III. Building The Record Before Trial
- 9.12 - A. Pleadings
- 9.13 - B. Disclosure
- 9.14 - 1. Concept Of Disclosure In New York
- 9.15 - 2. Depositions
- 9.16 - 3. Interrogatories
- 9.17 - 4. Discovery And Production Of Documents And Items For Inspection, Testing, Copying Or Photographing
- 9.18 - C. Pretrial Motions
- 9.19 - 1. Introduction
- 9.20 - 2. Strategies To Preserve An Issue Or Argument At The Pretrial Stage
- 9.21 - 3. Importance Of Pretrial Motions And Interlocutory Appeals
- 9.22 - A. Interaction Between Interlocutory Appeals And The Necessarily Affects Doctrine
- 9.23 - B. Pretrial Motions And Law Of The Case Doctrine
- 9.24 - D. Note Of Issue And Certificate Of Readiness
- 9.25 - IV. Protecting The Record At Trial
- 9.26 - A. Exception Vs. Objection
- 9.27 - B. Requests And Objections
- 9.28 - 1. Function
- 9.29 - 2. Specificity
- 9.30 - 3. Timeliness
- 9.31 - 4. Repeated Objections Unnecessary
- 9.32 - C. Evidence
- 9.33 - 1. Offer Of Proof
- 9.34 - 2. Inclusion Of Disputed Evidence
- 9.35 - D. Jury Selection
- 9.36 - E. Opening Statements And Summations
- 9.37 - F. Motion For Directed Verdict
- 9.38 - 1. Law To Be Applied In The Case
- 9.39 - 2. Verdict
- 9.40 - H. Post-Trial Motions
- 9.41 - V. Interests Of Justice Jurisdiction
- 9.42 - VI. Conclusion
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