Raise or lose: appellate discretion and principled decision-making.

• Author: Weigand, Tory A.
• Position: Introduction through III. Exceptional Circumstances: Plain Error and Beyond E. Distinction Between the First Circuit and Massachusetts, p. 179-217

1. INTRODUCTION II. RAISE OR LOSE: DEFINITION, JUSTIFICATION AND RIGOR III. EXCEPTIONAL CIRCUMSTANCES: PLAIN ERROR AND BEYOND A. Singleton and Hormel: Confirmation of Discretion B. Plain Error and Discretion: The Supreme Court C. First Circuit Discretion: Plain Error and the Krynicki-Harwood Factors D. Massachusetts Discretion: Substantial Risk of a Miscarriage of Justice and Manifest Injustice E. Distinction Between the First Circuit and Massachusetts F. Other Jurisdictions i. Federal Practice ii. State Practice IV. PRINCIPLED APPLICATION OF INFORMED DISCRETION A. Judicial Discretion and Error Correction B. Articulation of Discretionary Choice C. Respect and Need for Advocate Input and Direct Response D. A Uniform Discretionary Standard i. Exceptional Circumstances Discretion: Unruly ii. Unification 1. Court Authority and competency 2. Applicability and classification 3. Error correction 4. Issue Stature and Law Declaration 5. Consistency and Equal Treatment V. Proposed Construct VI. Conclusion I. INTRODUCTION

   Appellate waiver or forfeiture of issues or contentions not raised in lower court proceedings or sufficiently on appeal has been long deemed to require "zealous fidelity" and a rule which can neither be ignored nor brushed aside as a "pettifogging technicality or a trap for the indolent." (2) Equally entrenched is the recognition that the raise or lose rule remains one of "discretion" and that there can be no general rule as the "[o]rderly rules of procedure do not require sacrifice of the rules of fundamental justice." (3)

   The discretionary approach to new or unpreserved issues on appeal is the result of the collision between the principle of party presentation underlying the adversarial process and the role of the appellate court as both the guardian of a fair proceeding and final arbiter of applicable law. Yet, when the governing rule is declared to be both firm but discretionary, the hairs on the back of the neck tend to bristle (4) particularly as, unlike a trial court's discretion, appellate discretion is not likely subject to any other or further review.

   The discretionary nature of the raise or lose rule strikes at the heart of the integrity of the adversarial process and the appellate function. It provides substantial flexibility to address the particular circumstances of any case, yet can be marked by uncertainty and unevenness in application, leaving it subject to the harsh criticism that a "new issue is decided solely on the basis of whether a majority of the court considers the new issue necessary to decide the case in accordance with their view of the relative equities of the parties." (5)

   The discretionary exception to the raise or lose rule is embodied in the rubric of "exceptional circumstances." This "exception" has developed into either or both of an array of discrete factors or interests, as well as the plain error/substantial risk of miscarriage of justice review as to procedural default. The coterminous relationship between these two strands of the discretion can be uneasy and potentially provide disparate treatment, as well as add a measure of uncertainty and imprecision. This loss of clarity and consistency is only amplified by the lack of uniform criteria or identifiable scale as to individual or cumulative weight to be given to the multi-factor strain of the discretionary exception.

   Not only is there a measure of inconsistency and lack of clarity, but many appellate court decisions provide no or little explanation of why exception to forfeiture is being exercised; down play or ignore the right of the advocate to address waiver claims; and otherwise, at times, loosely reference and/or weigh the recited discretionary governing criteria. The resulting wound to principled decision-making serves to dilute societal and litigant respect and acceptance of the appellate decision.

   This article examines the discretion underlying application and exception to the raise or lose principle. Part I defines and overviews appellate forfeiture and the justifications for the raise or lose rule. Part II examines the origin and establishment of both plain error and the various other "exceptional circumstances" that have been found to justify departure from the raise or lose principle. It provides an overview of the discretion as it has developed and been articulated in both the First Circuit and Massachusetts as well as other states and federal circuits.

   Part IV attempts to take a critical look at the discretion and, particularly, the various factors or circumstances that have come to comprise "exceptional circumstances" discretion outside of plain error. It advocates for stringent protection of litigant input and proposes a construct that combines both lines of discretion into a singular inquiry applicable to all cases. The construct attempts to unify the language and contours of the discretion with the fundamental aim to promote equal treatment and to enhance the discussion and evolution as to coherency and principled decision-making. In the end, the discretionary "exception" to the principle of raise or lose may well represent to some a shining example of the genius of the common law, while to others it will remain an "unruly concept in a judicial system dedicated to the rule of law." (6)

2. RAISE OR LOSE: DEFINITION, JUSTIFICATION AND RIGOR

   Appellate "waiver" presents in two primary forms: where an issue or contention is made on appeal that was not raised or sufficiently raised in the lower proceedings and where, regardless of whether or not raised below, there is a failure to raise or sufficiently raise the issue or contention on appeal.

   Waiver has been used interchangeably with forfeiture, but the two are distinguishable. Waiver is the "intentional relinquishment of a known right." (7) Since the failure to raise or properly preserve an issue is many, if not most times, inadvertent or the result of ignorance, omission, or silence, (8) it is more precisely understood as "forfeiture." (9) As such, "waiver is accomplished by intent," while forfeiture results through neglect. (10)

   The underlying justifications for the raise or lose rule are the adversarial process, judicial efficiency and finality, and respect for the differing roles of the trial and appellate courts. (11) The rule seeks to encourage full presentation as well as correction in the lower court; fairness to both the adversary and the trial court; and prevention of prejudice. (12)

   Primary to the raise or waive rule is the understanding that our adversarial system is based on the "principle of party presentation." (13) As stated by the United States Supreme Court:

   In our adversary system, in both civil and criminal cases, in the first instance and on appeal, we follow the principle of party presentation. That is, we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present. (14) It is for the advocates to frame the issues and bear the burden to properly and sufficiently present appellate contentions to the appeals court. (15) All issues and claims are then tested by the adversarial process further refining and defining the facts and law in dispute. (16) This trait of the adversarial system renders the raise or waive rule "more than just a prudential rule of convenience; ... distinguishing] our adversary system of justice from the inquisitorial one." (17)

   The interests of fairness and finality (18) also underlie the raise or lose rule and follow from the principle that an "appeal must be based on what took place at the trial, not on anything which is presented for the first time before an appellate court." (19) If errors not raised below in the lower court could be raised on appeal, unsuccessful litigants would be free to second guess tactical or deliberate decisions made in the lower court or otherwise seek to re-try or re-adjudicate the matter on appeal when the desired result is not reached below. (20) The rule thus serves predictability and "[w]ithout predictability the appellate process becomes little more than an exercise by which the appellant attempts to persuade the appellate court that the result reached by trial court was not the 'right result.'" (21) The raise or waive rule is thus the litigation "winnowing process" and "part of the machinery by which courts narrow what remains to be decided. " (22) Absent a raise or lose rule, both the parties and the public are put to increased expense, especially where if a timely objection or raising of the issue or error had been made, the lower court could have corrected or ameliorated the error perhaps obviating the need for any appeal. (23) The loss of a chance for cure impacts the substantial policy behind finality and orderly procedure. Similarly, the raise or lose rule not only seeks to insure an opportunity for the opposing party to present a response, but allows the lower court, in the first instance, to fully address the issue. (24) The absence of any considered decision of the trial court for the appellate court to consider and evaluate is not insubstantial. (25) Some courts view it as impossible to determine if there was error if...