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

• Author: Weigand, Tory A.
• Position: III. Exceptional Circumstances: Plain Error and Beyond F. Other Jurisdictions through IV. Principled Application of Informed Discretion B. Articulation of Discretionary Choice, p. 217-248

F. Other Jurisdictions

i. Federal Practice

The federal circuits all apply the Olano plain error rule in both criminal and civil cases, (195) with the caveat that noticing such error is exceedingly rare in civil cases. (196) Hormel/Singleton's "exceptional circumstances" discretion is also followed in all circuits although varying in formulation. Certain circuits utilize the Singleton "resolution is beyond any doubt" (197) and/or "injustice might otherwise result" (198) language, with others utilizing "manifest injustice," (199) "interests of justice," (200) or "miscarriage of justice" (201) terminology. Full briefing and lack of prejudice is regularly referenced (202) with many, if not most, of the federal circuits also routinely referencing issue of law, (203) no additional fact-finding, (204) in the "public interest," (205) as well as to "materially advance" the purposes of litigation factors or considerations. (206)

Additional factors noted by federal courts include an exception for arguments as to the illegality of contracts based on public policy; (207) intervening change in the law; (208) whether reaching the issue is necessary to the resolution of other issues before the court; (209) novelty; (210) whether or not "the matter upon which relief is sought was not known and could not reasonably ... be raised at trial"; (211) whether the parties right to have issues in their suit considered by both the district court judge and appellate court; (212) whether addressing the issue will "materially advance" the progress of already protracted litigation; (213) and whether, if full briefing is present, the benefit of the district court hearing is "minimal because proper resolution of the issue is clear." (214)

The identified factors or considerations are not uniform with the Fifth Circuit frankly stating that "when an appellate court should consider an issue not properly presented is a question with no certain answer." (215) The Tenth Circuit has rejected the assertion that pure legal issues may be reviewed on appeal or that public policy arguments merit exception. (216) At least two circuits have suggested that the discretion should not be exercised simply to correct a wrong result, (217) with at least one decision stating either that review of unpreserved error or new argument is appropriate where the standard of review is de novo and not requiring any deference to the trial court, (218) or where the issue is a "threshold" one. (219)

The Sixth, Eleventh, and District of Columbia Circuits, in turn, similar to the First Circuit and the Krynicki-Harwood decisions, have set forth a master list of the governing considerations. According to the Sixth Circuit, the discretionary criteria includes whether new issue is a question of law or there is a need for determination of facts; where proper resolution is beyond any doubt; whether failure to take up the issue will result in a miscarriage of justice or denial of substantial justice; and "the parties' right[s] under our judicial system to have the issues in their suit considered by both district court and appellate court. " (220) The Eleventh Circuit's list is similar, i.e., the issue must be one of law and refusal to consider it would result in a miscarriage of justice; appellant had no opportunity to raise objection below; the issue involves an "interest of substantial justice; the issue is one where the proper resolution is beyond any doubt; or the issue presents a significant question of "general impact or of great public concern." (221) Also notable, and discussed in more detail below, certain courts, particularly the Tenth Circuit, have limited discretion as to new arguments on appeal to plain error review. (222)

ii. State Practice

Virtually all of the states have adopted a plain error type default standard for unpreserved contentions at least in criminal cases with only about eight (8) states refusing to adopt such an exception or otherwise limiting any plain error review to death penalty cases or erroneous jury instruction claims. (223) The majority of the states adopting a plain error type of default standard utilize the terms "plain error," (224) while others refer to the doctrine as either "palpable," (225) "clear,"...