SC Lawyer, March 2006, #4. Rule 59(e) Error Preservation in the State and Federal Systems.

• Author: By William J. Watkins Jr.

South Carolina Lawyer

2006.

SC Lawyer, March 2006, #4.

Rule 59(e) Error Preservation in the State and Federal Systems

South Carolina LawyerMarch 2006Rule 59(e) Error Preservation in the State and Federal SystemsBy William J. Watkins Jr.Rule 59(e) practice greatly differs between the state and federal systems and poses unique difficulties for South Carolina lawyers. On one hand, state court practitioners unfamiliar with federal practice run the risk of filing unnecessary motions that could affect the tolling of the time to appeal. On the other hand, federal practitioners unfamiliar with state requirements run the risk of failing to preserve an error by not filing a Rule 59(e) motion.

From the wording of the state and federal rules, one would not know that a "dual system" of Rule 59(e) practice exists. Federal Rule 59(e) provides that "[a]ny motion to alter or amend a judgment shall be filed no later than 10 days after entry of the judgment." State Rule 59(e) provides that "[a] motion to alter or amend the judgment shall be served not later than 10 days after receipt of written notice of the entry of the order." The main difference in the text simply deals with when the 10-day clock starts to tick: entry of the judgment in the federal court and receipt of written notice of the entry of the order in state court.

Federal and state Rule 59 originates from the tenets of English common law. To ensure that justice was done, the common law commanded that a trial judge have ample power to reconsider an issue. This power included the authority to grant a new trial or to alter a ruling. While this ancient notion of justice places much power in the court, it also places a burden on the parties to raise all issues in the trial court before pursuing an appeal. Issues not raised in the trial court (via a Rule 59(e) motion or otherwise) will typically not be considered by the appellate court.

The burden on the parties is logical for a number of policy reasons. For example, it would be fundamentally unfair in many cases for an appellate court to rule on a matter that was not presented below. The trial court is a more proper forum for the presentation of testimony and other evidence of a disputed fact. Moreover, as a matter of judicial economy, a lawyer should raise all issues in the lower court so that it has an opportunity to rule before burdening an appellate court...