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
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.
Court applied the raise-or-waive rule in at least seven civil
decisions in its 2015-2016 term
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.'" Thus,
"'a litigant cannot raise an objection or advance a
new theory on appeal if it was not raised before the trial
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
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.'"
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.
B. Jury Instructions
Rhode Island Supreme Court is most “exacting about
applying the raise-or-waive rule in the face of inadequate
objections to jury instructions.”
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. 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