Appellate Law

Publication year2023
How (Not) to Mess Up an Appeal: Volume I
Vol. 52, No. 5 [Page 20]
Colorado Lawyer
June, 2023


This article is the first in a three-part series discussing common errors made in appellate cases and giving practical tips on how to avoid them. This installment focuses on mistakes made at the trial level.

Appellate law is a funny beast. At a high level, the process is straightforward: The appellant files a notice of appeal; the parties brief the substantive issues and, if it's scheduled, participate in oral argument; and eventually the court issues a written opinion. But things inevitably get tricky on the ground, and when things get tricky, mistakes happen. Some ofthese mistakes, such as writing a less-than-persuasive brief, may not doom the attorney's chance for success. But many appellate errors are jurisdictional or otherwise fatal to your cause. Indeed, the federal and regional reporters are replete with cases where litigants get tripped up on some seemingly hyper-technical rule—and lose their appeal as a result.

This article is the first in a series that will cover some of the more frequent appellate errors and offer tips on how to avoid them. This installment focuses on mistakes made at the trial court, and in particular, on some thorny issues relating to waiver and the final judgment rule.


Trial lawyers are well aware of the doctrine of waiver: barring unusual circumstances, if a party doesn't raise an argument in the first instance at the trial court, that argument is waived on appeal in civil matters.[1] Technically, an argument might be waived or forfetted. Though the terms are "often used interchangeably by jurists and litigants," there is a distinction: "Forfeiture is the failure to make the timely assertion of a right; waiver is the intentional relinquishment or abandonment of a known right."[2] But it is enough for our purposes to note that if a lawyer doesn't raise an issue with the trial court, the issue generally cannot be raised in the appeal. There are a number of scenarios that tend to trip up litigants. Here are a few of them.

Objecting to a Magistrate's Non-Dispositive Order

Within the federal system, magistrate judges are empowered to hear and decide non-dispositive issues referred to them by the presiding district judge.[3] Non-dispositive orders—orders that do not finally adjudicate any party's claim or defense—can cover a host of issues, including motions to compel, privilege disputes, motions to quash, and motions for a protective order. Under the Federal Rules of Civil Procedure, a party has just 14 days to lodge an objection to a non-dispositive order.[4] And as Rule 72 itself acknowledges, "A party may not assign as error a defect in the order not timely objected to."[5] Thus, the failure to make an objection within that two-week period waives any argument challenging the magistrate judge's order.[6] Notably, there is a circuit split about whether the failure to make an objection deprives the appellate court of jurisdiction to hear the issue entirely or if it is instead only subject to the non-jurisdictional firm waiver rule,[7] which ordinarily bars appellate review of both factual and legal questions unless "the interests ofjustice" dictate otherwise.[8] But even in the Tenth Circuit, which applies the firm waiver rule, a party doesn't have much hope in appealing such an order.[9] In practice, then, once the 14-day period expires, the magistrate's order cannot be challenged.

Rule 50 Motions

Another common error involves failing to file Rule 50 motions requesting judgment as a matter of law—and the differences between federal and Colorado state practice. In the federal system, a party can move for judgment as a matter oflaw after the other "party has been fully heard on an issue during a jury trial . . . ."[10]If the district court doesn't grant that motion, then the party can renew the motion within 28 days after entry of judgment.[11] Critically, if a party doesn't file a Rule 50 motion, "an appellate court [is] without power to direct the District Court to enter judgment contrary to the one it had permitted to stand."[12] Not only that, but without a Rule 50 motion, the district court is also unable to order a new trial.[13] Put another way, if a party doesn't file the motion, the jury's verdict is mostly insulated from review. This rule is intended to preserve the fairness and integrity of the judicial process: a Rule 50(b) motion "is necessary because "˜determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart.'"[14] At the same time, there is an exception to this rule—albeit only in some circuits, and possibly only for a limited time. Several circuit courts, including the Tenth, have held that a party can appeal "a purely legal question" raised in a summary judgment motion even if it failed to file a Rule 50 motion.[15] Still, the Tenth Circuit has "advised that out of an abundance of caution, and good trial practice, counsel should renew summary judgment grounds in a Rule 50 motion for judgment as a matter of law at the close of all the evidence, and again, if necessary, after the jury has returned a verdict . . . ."[16] Moreover, the US Supreme Court recently granted certiorari in a case to resolve this issue.[17] Depending on which way the Court rules, the exception might not be in place for long.

Colorado's state courts, in contrast, treat this type of motion a little bit differently. Motions for judgment notwithstanding the verdict are governed by CRCP 59, and one portion of that rule makes clear that the "[f]iling of a motion for post-trial relief shall not be a condition precedent to appeal or cross-appeal, nor shall filing of such motion limit the issues that may be raised on appeal."[18] Trial lawyers might breathe a sigh of relief after reading that language, but there are a couple of important caveats.

First, while Rule 59 provides that a post-trial motion isn't a condition precedent for appeal, a litigant still needs to preserve the issue and give the trial court an opportunity to rule. Moreover, the Colorado Supreme Court has said that "the propriety of a summary judgment denial is not appealable after a trial on the merits regardless of whether the denial is premised on a point of law or material issues of fact in controversy."[19] Thus, because filing a motion for summary judgment doesn't preserve an issue, as a practical matter, a party generally must "make a motion for a directed verdict or for a judgment

"While a litigant may be able to raise an issue just once and thread the needle when it comes to preservation, the safest course is to put the argument into the record both before and after the verdict. "

notwithstanding the verdict" to preserve the argument for appeal.[20] Second, at least one Colorado Court of Appeals panel has held that filing a motion for a directed verdict under Rule 50 is necessary to preserve an argument if it was raised at the summary judgment stage. According to the appellate court, "[f]ailure to properly preserve an argument in a motion for directed verdict operates as an abandonment and waiver of an issue previously raised in a motion for summary judgment."[21]

What should a lawyer make of all these competing pronouncements? The best approach is to raise dispositive issues early and often—and in particular, to file both a Rule 50(a) and Rule 50(b) motion (in the federal system) or both a motion for a directed verdict and a motion for judgment notwithstanding the verdict (in the state system). While a litigant may be able to raise an issue just once and thread the needle when it comes to preservation, the safest course is to put the argument into the record both before and after the verdict.


Remittitur—a trial court order reducing an excessive jury award—has its own set of pitfalls. A motion for remittitur is usually brought as a Rule 59 motion.[22] But when a trial court grants the motion, it cannot simply order a reduction in the size of the verdict; it must give the plaintiff "the option of a new trial in lieu of remitting a portion of the jury's award."[23] That requirement stems from the constitutional right to a jury trial: "[T]he Seventh Amendment prohibits [a] court from substituting its judgment for that of the jury's regarding any issue of fact."[24] Thus, a plaintiff can either accept the reduction—and thereby waive its right to a jury trial—or try the case again in front of a new jury.[25] Retrying the same case (usually only as to the damages issues) might not sound like an attractive option, but plaintiffs need to think carefully before accepting a remittitur. There is a "longstanding rule" that a plaintiff "may not...

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