§ 11.2 The General Rule: The Appellate Courts Will not Usually Consider Errors Raised for The First Time O

• Jurisdiction: Washington

§11.2 THE GENERAL RULE: THE APPELLATE COURTS WILL NOT USUALLY CONSIDER ERRORS RAISED FOR THE FIRST TIME ON REVIEW

The general rule is that an appellate court will not consider an error that has been raised for the first time on review. In Washington, that principle, originally established by case law, has been codified by court rule. The applicable court rule, RAP 2.5(a), provides:

Errors Raised for First Time on Review. The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right. A party or the court may raise at any time the question of appellate court jurisdiction. A party may present a ground for affirming a trial court decision which was not presented to the trial court if the record has been sufficiently developed to fairly consider the ground. A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court.

(1) Policy basis for the general rule

The doctrine of preservation of error evolved out of the very limited record that could be generated by common-law courts, which originally were confined by available technology and levels of literacy to recording only the exceptions taken during trial. Reviewing courts adopted the terminology that an (alleged) error would only be reviewed if it had been "preserved," which originally meant that the error would only be reviewed it if appeared on the list of exceptions to rulings generated during the course of trial.

Although the formal requirement of a bill of exceptions has long since passed from the scene, appellate courts, including in Washington, continue to speak in terms of whether an error has been "preserved" for review. The primary modern reason for the rule has become judicial economy. In State v. Scott,110 Wn.2d 682, 685, 757 P.2d 492 (1988), the court observed:

The rule reflects a policy of encouraging the efficient use of judicial resources. The appellate courts will not sanction a party's failure to point out at trial an error which the trial court, if given the opportunity, might have been able to correct to avoid an appeal and a consequent new trial.

Accord State v. Robinson, 171 Wn.2d 292, 304-05, 253 P.3d 84 (2011); Smith v. Shannon,100 Wn.2d 26, 37, 666 P.2d 351 (1983) ("The reason for this rule is to afford the trial court an opportunity to correct any error, thereby avoiding unnecessary appeals and retrials.").

Commentators have suggested that the rule is also applied as a matter of fairness to the opposing party. For example, "the opposing parties should have an opportunity at trial to respond to possible claims of error, and to shape their cases to issues and theories, at the trial level, rather than facing newly-asserted errors or new theories and issues for the first time on appeal." 2A Karl B. Tegland, WASHINGTON PRACTICE: RULES PRACTICE, RAP 2.5, Author's Comments, at 212-13 (8th ed. 2014).

The concept of preservation of error in the trial court should be contrasted with the issue of compliance with the Rules...