The preservation rule in the New York Court of Appeals: how recent decisions and characterizations of the rule inform advocacy.

• Author: Montes, Richard J.

1. INTRODUCTION

   The Court of Appeals has engaged in sharp and divisive debates on the preservation rule over the past few years. These debates are important in light of how fundamental the preservation rule and its exceptions are to appellate practice. (1) The rule itself can be stated simply: if a party did not raise an issue below, it cannot raise the issue on appeal. (2) In practice, failing to preserve an error is one of the most frustrating ways to lose an appeal--before it begins. (3) Thus, a proper objection, in its simplicity, is of unmatched importance to the appellate process. (4)

   As will be shown, recent debates over the preservation doctrine have been nuanced and contentious. (5) In one case, the rule led a judge to call some of her fellow judges' reasoning "downright bizarre." (6) In another case, a second judge referred sarcastically to the majority's reasoning as "an exercise akin to deciding whether [he] would be a bicycle if [he] had wheels." (7) In a third, a party failed to preserve an objection at the trial court and ultimately prevailed at the Court of Appeals because of that failure. (8)

   This article explores these disagreements on preservation, revealing a complex push and pull among adherence to doctrine; limits on authority; and principles of justice, equity, and pragmatism. (9) Part II of this article provides a historical framework of the preservation rule and appellate review. Part III reviews several recent decisions implicating the preservation doctrine, largely focused on its appearance in civil litigation. (10) The article concludes with a discussion of the future of the preservation rule and what the current debate means for practitioners today.

2. ROOTS OF THE PRESERVATION DOCTRINE

   1. Mechanisms Developed for Appellate Review in Anglo-American Courts

      The current debate over the preservation doctrine is part of a centuries-long evolutionary process of superior courts reviewing the conduct of inferior courts. (11) In modern times, the rule incorporates policy choices and a division of responsibility among attorneys, trial courts and appellate courts, as well as competing incentives for efficient case administration. (12) The issue even goes to the source of an appellate court's authority to decide new issues on appeal. (13) This article, therefore, begins with the historical divide between strict error-correction schemes and more liberal justice-seeking schemes. That historical divide of processes for appellate review informs, at a broader level, the limitations on reviewing verdicts and judgments today.

      Appellate review in the English legal system is understood to have developed from a party's accusations that a jury gave a "false verdict" or a judge rendered a "false judgment." (14) Such charges meant, in essence, a party accused a judge or jury of lying. Said differently, the charges would not focus on whether a judge or jury made a mistake. One can imagine how successful a litigant would be in calling a judge a liar. (15) This system proved inefficient, and the powers to review inferior courts evolved into a new system of writs, including the writ of error. (16)

      The writ of error allowed a superior court to remedy legal mistakes in lower law-court judgments. (17) It was designed to fix errors of law, not facts, appearing from the proceedings below or as preserved in a document known as a bill of exceptions. (18) This writ was not designed to find justice in the law courts. (19)

      Finding justice was more appropriately addressed by equity courts. (20) In fact, the word "appeal" surprisingly had a different meaning in the past than its meaning today. It referred then to the equity court practice of essentially retrying a case anew. (21) Today, New York appellate courts do not retry cases anew. Thus, what we term an appeal today resembles much more a writ of error than the word's original meaning. (22)

      Divergent historical approaches for review are attributable, in part, to the parallel system of courts of law and courts of equity that was prevalent as recently as the early- to mid-nineteenth century. (23) In the mid-nineteenth century, there was a trend toward single appellate courts where "both equity and common law matters were heard by a single appellate court." (24)

      In New York, the merging of law and equity was a product of nineteenth century law reforms known today as the Field Code. (25) This revolutionary codification of civil procedure coincided with the creation of the New York Court of Appeals in an amendment to the New York State Constitution in 1846.26 Commentators note that the American and territorial experience postunification of law and equity was, broadly speaking, to follow more closely the writ of error process than the equity appeal process:

      American appellate courts adopted the writ of error procedure as the default procedure. Following this choice, emphasis was placed on reviewing procedural technicalities rather than rehearing the equity appeal as was the case in England. More importantly, the American appellate courts only reviewed questions of law in common law and equity matters.... Such a situation proved to be too cumbersome to maintain and reform was inevitable. (27) B. Historical Appellate Review at the New York Court of Appeals

      "The restrictions on the scope of review available in the Court of Appeals on an appeal properly before it also represent a compromise between the diverse views as to whether that Court should serve the role of oracle for the law or that of dispenser of justice." (28)

      Early on, preservation was described as an issue of the court's jurisdiction and power. (29) In Duryea v. Vosburgh, (30) an 1890 opinion, the Court of Appeals discussed preservation as the preservation of power:

      The denial of a motion for a new trial, made on the ground stated, is not the subject of an exception, and if it be competent for this court to review the decision of that question by the General Term, it follows, of course, that it reviews a question of law without any exception having been taken, which is contrary to its uniform practice, and the power to do which has been denied. (31) By modern parlance, the court was powerless to review the denial of a motion for a new trial because it was not the subject of an exception.

      In terms of process, the system was formal and involved taking objections, exceptions, and filing bills of exceptions after cases. (32) In an 1899 Court of Appeals opinion, Hecla Powder Co. v. Sigua Iron Co., (33) the multi-part preservation process was captured quite succinctly:

      In a civil action we can only reverse upon exceptions, and are compelled to disregard all errors committed by the trial court, unless they were pointed out by an objection and saved by an exception, no matter how serious those errors may be. (34) Thus, long ago, a timely, specific objection was insufficient to preserve a matter for appellate review. The trial attorney was required to object, then take an exception to the unfavorable ruling, and finally compile and submit a bill of exceptions at trial's end. (35) A failure to submit an error with the bill of exceptions meant a timely, specific, and objected-to ruling would be lost. (36) Hecla Powder Co. is of particular note because the opinion begins by highlighting "[sjeveral interesting questions, ably argued by the learned counsel for the appellant," before crushing that counsel's hopes. (37) Those "[sjeveral interesting questions," the judge concluded, "are not before us...." (38)

      This overly formalistic system subsequently developed into a more pragmatic one. (39) Statutes and court rules eliminated exceptions and bills of exceptions. There were many reasons for eliminating these formalisms, but two should be noted. First, the objection itself did all the work necessary to put the trial court on notice. (40) Second, the objection and record alone enabled an appellate court to review the matter fully. (41) Beyond reforms of error preservation, the courts themselves underwent reforms of their jurisdictional scope and purpose. (42)

      Today, the need for an exception has been eliminated and appellate jurisdiction has gone through reforms; the need for a sufficiently specific and properly raised objection, however, remains. (43) Notwithstanding these reforms, attorneys still can be heard to ask for an exception, and judges can be heard to respond, "you have your exception." (44)

   3. Reforming Appellate Review and Changing Views on Preservation

      Along with the more pragmatic procedural approach came a softening of language on the preservation rule in the mid-twentieth century. (45) In 1969, the Court of Appeals commented: "[T]he general rule concerning questions raised neither at the trial nor at previous stages of appeal is far less restrictive than some case language would indicate." (46) The court then quoted the leading treatise on the Court of Appeals: "[I]f a conclusive question is presented on appeal, it does not matter that the question is a new one not previously suggested. No party should prevail on appeal, given an unimpeachable showing that he had no case in the trial court." (47) In 2003, the court stated that only "with rare exception" will it review a question "raised for the first time on appeal." (48) It noted a rule for new issues: "A new issue--even a pure law issue--may be reached on appeal only if it could not have been avoided by factual showings or legal countersteps had it been raised below." (49)

      In 2009, Judge Smith dissented in a case while noting:

      Our preservation rule is an important one--so important that we have occasionally referred to it as a matter of "jurisdiction." But it is not truly jurisdictional, in the sense of being a limitation on our power. We review unpreserved questions when common sense and practical necessity dictate that we should. (50) Dissenting separately, however, Judge Graffeo commented that she "viewjs] the preservation requirement as a...