Five Things Rhode Island Supreme Court Wants You to Know About Civil Trial and Appellate Practice, 0617 RIBJ, RIBJ, 65 RI Bar J., No. 6, Pg. 11


Five Things the Rhode Island Supreme Court Wants You to Know About Civil Trial and Appellate Practice

Vol. 65 No. 6 Pg. 11

Rhode Island Bar Journal

June, 2017

May, 2017


As lawyers, we are trained to follow the rules. For civil practitioners, the Rhode Island Superior Court Rules of Civil Procedure and the Rhode Island Supreme Court Rules of Appellate Practice are familiar sources. Some of the most important rules, however, are not found in those carefully organized and numbered rules.

Buried within the footnotes of the Atlantic Reporter are some of the most important rules governing civil trial and appellate practice. The Rhode Island Supreme Court's decisions and, in particular, the footnotes to its decisions, are laden with important rules governing civil trial and appellate practice.

In recent years, the Rhode Island Supreme Court has developed a practice of sending admonitions and reminders to practitioners, largely through the footnotes of its decisions, on not only the Court's rules, but also its expectations for trial and appellate practice. The following are just a few of the reoccurring themes the Court has developed.

1. The Raise-or-Waive Rule

The raise-or-waive rule, arguably one of the most important rules for trial lawyers and appellate practitioners, is one of the Rhode Island Supreme Court's most frequently invoked legal doctrines. As of March 2017, the Rhode Island Supreme Court has already applied the rule in five civil decisions in its 2016-2017 term.[1] In three of the five decisions, the Supreme Court concluded that the raise-or-waive doctrine precluded review of at least one issue raised on appeal, underscoring the importance of properly raising issues and objections at trial.[2]

The Court applied the raise-or-waive rule in at least seven civil decisions in its 2015-2016 term[3] and in at least eight civil decisions in its 2014-2015 term.[4] Notwithstanding the Court's repeated reminders on the importance of adherence to the rule, preservation issues continue to arise.

As a general matter, the Rhode Island Supreme Court has "consistently adhered to the venerable 'raise or waive rule,' which provides that 'an issue that has not been raised and articulated previously at trial is not properly preserved for appellate review.'"[5] Thus, "'a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.'"[6] This is true regardless of whether the matter proceeds to trial or is disposed of at some earlier stage, such as summary judgment.[7]

The Supreme Court has applied the raise-or-waive rule when trial counsel has failed to properly preserve objections at various stages of the lower court proceedings. There are, however, notable trends. Most often the raise-or-waive doctrine is applied in the context of evidentiary rulings and jury instructions.

A. Evidentiary Rulings

With respect to evidentiary rulings, the Supreme Court consistently has held that "if 'the introduction of evidence is objected to for a specific reason, other grounds for objection are waived and may not be raised for the first time on appeal.'"[8] The Supreme Court's holdings highlight the need for counsel to inform the trial justice of all the bases for his or her objection to the introduction of evidence. For example, when an appellant argued recently that the trial justice had erred by admitting into evidence a medical report and testimony concerning the report because it was unduly prejudicial under Rule 403 of the Rhode Island Rules of Evidence, the Supreme Court held that the appellant had waived that argument by objecting to the evidence only on the grounds of relevancy.[9]

Related to the need to preserve objections to evidentiary rulings is the need to make a sufficient offer of proof. In a decision this term, the Supreme Court held that plaintiffs had preserved an argument related to the trial justice's preclusion of the plaintiffs' expert from testifying by making a sufficient offer of proof.[10] In so concluding, the Supreme Court explained " [i]t is well established that a litigant must make [an offer of proof] after a sustained objection to preserve the issue for appeal."[11] Thus, "'an examiner, after objection to a question propounded to a witness has been sustained, [must] advise the trial court what he expected the witness would have said if allowed to answer.’”[12]

B. Jury Instructions

The Rhode Island Supreme Court is most “exacting about applying the raise-or-waive rule in the face of inadequate objections to jury instructions.”[13] In addition to the raise-or-waive rule, Rule 51(b) of the Superior Court Rules of Civil Procedure “‘bars a party from challenging an erroneous instruction unless [the party] lodges an objection to the charge which is specific enough to alert the trial justice as to the nature of [the trial justice’s] alleged error.’”[14] Accordingly, the Supreme Court is “especially rigorous in the application of the raise-or-waive rule when considering objections to jury instructions.”[15]

In each of the past three court terms, the Supreme Court has refused to address arguments related to jury instructions on the grounds that the arguments had been waived.[16] For example, this term in Bates-Bridgmon, the Supreme Court concluded that plaintiffs in a premises liability case waived their request for a jury instruction on the mode of operation rule.[17] In that case, the plaintiffs maintained that the trial justice had told both parties that the court would instruct the jury on the mode of operation rule and the parties had extensively briefed the rule in the context of a motion in limine.[18] However, plaintiffs did not specifically request an instruction on the mode of operation...

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