IV. Is the Issue Preserved for Appeal?

• Library: Practicing before the U.S. Court of Appeals for the 4th Circuit: A Guide from Start to Finish (2021 Ed.)

IV. Is the Issue Preserved for Appeal?

The discussion above addresses how the appeal begins, but counsel should also be mindful in district court about preserving possible issues for appeal. The general rule for preserving an issue for appeal is that "an objection [or argument] must be timely and state the grounds on which it is based."⁶⁵ Consequently, "an objection on one ground does not preserve objections based on different grounds."⁶⁶ A party wishing to preserve an issue for appeal "must press and not merely intimate the argument during the proceedings before the district court."⁶⁷ Counsel should also be mindful to create a clear record of issues that might be appealed, such as an objection to instructions to the jury or objections to the evidence.⁶⁸

For certain specific issues, counsel should be aware of rules that can apply to issue preservation. For example, to challenge the sufficiency of the evidence in a civil jury trial on appeal, a party must comply with Federal Rule of Civil Procedure 50, which requires both a motion under Rule 50(a) after a party has been fully heard on an issue, followed by a motion under Rule 50(b) (as well as any corresponding Rule 59 motions, such as for new trial) after the trial.⁶⁹ In Unitherm Food Sys. v. Swift-Eckrich, Inc., the Supreme Court explained:

A postverdict motion is necessary because [d]etermination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the 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.⁷⁰

Oral motions are permitted, but because they must comply with the rule, written motions are advisable.⁷¹ However, as the Fourth Circuit has also clarified, the rule set out in Unitherm applies to questions about the sufficiency of the evidence, not "pure" questions of law: "Rule 50 is meant to preserve the judge's power to determine evidentiary sufficiency...