Concept
Prerequisites to Review
Scope of review for judge and jury
Prerequisites to Review
A standard of review tells a court of appeals how closely to examine a ruling; it does not tell the court whether to examine the ruling at all. Every standard earlier in this chapter (de novo for law, clear error for a judge’s findings, abuse of discretion for judgment calls, a reasonable-jury inquiry for verdicts) assumes the claimed error has already arrived in reviewable form. Three prerequisites decide whether it has. The loser must have preserved the error by raising it in the trial court. The loser must present and argue the error on appeal. And the error must have mattered, because the federal harmless-error statute, 28 U.S.C. § 2111, directs the court to give judgment “after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.”1 Rule 61 says the same of every stage of the proceeding.2
The first two prerequisites follow from what an appellate court can realistically do. Trial records are too long and appellate judges too few for the court to search for error on its own, and the court does not sit to assure a perfect trial; it lets an error go unless the error harmed the appellant. The burden therefore falls on the loser to object in the trial court, which gives the judge the first chance to cure the error and so may make the appeal unnecessary, and then to present and argue the error to the appellate court, which spares it a search of the record.3
The third prerequisite, harm, receives its own section after this one. This unit covers the other gates: the objection requirement, the plain-error exception that sometimes excuses a missing objection, and the threshold question of who may appeal at all.
Preservation by Objection
A court of appeals is a court of review, the antithesis of a court that hears an action in the first instance. Because of that institutional limit, the ordinary rule is that, absent exceptional circumstances, a party may not raise on appeal an error it did not first ask the trial court to correct.4
The federal rules apply that principle at every stage of trial. Rule 46 requires a party, for any ruling or order made or denied, to “state the action that it wants the court to take or objects to, along with the grounds for the request or objection,” and a party who does not loses the contention on appeal.5 Rule 51 extends the requirement to jury instructions and Rule 50 to challenges to a verdict, so in most instances the dissatisfied litigant must first raise the objection with the trial court to make the matter reviewable.6
Evidence rulings show the requirement in finest detail. An objection must be timely and must state the specific ground, unless the ground is so obvious from the context that it must have been apparent; no particular words are required.7 When a court later asks whether the words used at trial were enough, it looks to the rule’s two purposes: bringing the objection to the trial judge’s attention so the judge can rule, and telling the opponent what is objectionable so the opponent can correct it.8 An objection that produces no ruling gains nothing. The admission of evidence cannot be assigned as error if the objection was made but never ruled upon, if the ruling was reserved but never made, or if the objection was withdrawn at any time.9
When a court excludes evidence, the party preserves the issue through an offer of proof, which puts in the record what the witness would have said.10 Without that record the court of appeals cannot tell whether the exclusion affected a substantial right, and an error affects a substantial right when it has a material effect on, or substantially sways, the jury’s deliberations.11
Preservation is the first of three hurdles an appellant must clear to win reversal of a judgment based on an evidentiary ruling. The appellant must show that she preserved the issue by objecting or making an offer of proof, that the trial judge erred, and that the error is reversible rather than harmless.12 The third hurdle is the subject of the next section.
Three reasons support the requirement, and each explains why the exceptions stay narrow. An objection gives the trial judge the first opportunity to cure the error, which may make the appeal unnecessary.13 It tells the opponent what is objectionable while the opponent can still correct it.14 And ours is an adversary system, which places the lion’s share of responsibility for the conduct of trial in the litigants, acting through their lawyers, so there is good reason to hold them to the choices they make at trial and to refuse relief for errors they cause or might reasonably have been expected to prevent.15
Jury instructions follow the same path. Rule 51 does not ordinarily allow a party to assign as error an error in giving a jury instruction unless the party objected in the trial court.16 A complaint like Hardin’s, that the judge’s instructions failed to particularize the duty to the facts of the case, is exactly the kind that must first go to the trial judge.17
MacArthur v. University of Texas Health Center at Tyler shows the cost of skipping that step. The plaintiff in an employment discrimination action asserted five claims against the health center and two co-workers. The jury returned a verdict against only one co-worker, on an intentional infliction of emotional distress claim, and the district court entered judgment for her on that claim and dismissed the others.18 She violated both the preservation and the presentation requirements in her appeal, but her Title VII retaliation claim shows the preservation problem most sharply: she listed the dismissal in her notice of appeal, briefed it, and argued it, and the court of appeals still refused to consider it because she had not preserved the claim in the trial court.19 Had she asked the trial court for what she wanted, the judge might have granted the request and made the appeal unnecessary. Had the judge denied it, the denial might have come with an explanation, giving the court of appeals a fuller record and possibly a persuasive argument. Either way, the defendants would have had notice of her request and a chance to respond.20 Everything she filed on appeal came after the chance to act had passed, and nothing filed on appeal could restore it.
A challenge to a jury verdict runs through the same gate in two steps. The first motion for judgment as a matter of law comes under Rule 50(a), once the opposing party has been fully heard on the issue during the jury trial, and the second renews the motion after the verdict under Rule 50(b).21 The rule requires at least two motions to preserve the denial of judgment as a matter of law as an issue for appeal.22 The first motion alerts the court and the opponent to an apparent failure of proof and lets the non-moving party fill the evidentiary gap if it can, which is why a post-verdict motion may not expand the grounds on which judgment as a matter of law is sought.23
One setting dispenses with these special steps. A party may later question the sufficiency of the evidence supporting a judge’s findings whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.24 The exception fits the purpose of the general rule. A judge who has found the facts has already weighed the evidence, so an objection from the loser would only ask the judge to reconsider a question the judge has just decided. A jury trial differs, because the judge has passed on no sufficiency question until a party raises it by motion, and the Rule 50 motions do that work. The judge’s findings then stand unless clearly erroneous, with due regard for the trial court’s opportunity to judge the witnesses’ credibility.25 The exception covers sufficiency only. A complaint that the findings are incomplete is a separate matter, governed by the Rule 52(b) motion discussed earlier in this chapter.
Silence at trial does not always end the matter, because a court of appeals may notice a plain error in limited circumstances. That exception comes next.
The Plain Error Exception
Rule 51(d)(2) opens a narrow door in the objection requirement. It provides that “[a] court may consider a plain error in the [jury] instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights.” Criminal Rule 52(b) says much the same: “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The civil provision was added in 2003 and revised in 2007.27
The plain-error rule is an equitable tempering of the rules of preservation and waiver, and it allows review, in limited circumstances, of especially important errors.28 Courts typically invoke it where the error seriously has affected the fairness, integrity, or public reputation of the trial court’s proceedings.29 The narrowness is deliberate. If every error that could have been raised below could be raised later, the objection requirement would collapse. Do not count on the exception. A concurring opinion once said that a litigant “surely has the right to assume that a federal trial judge knows the elementary substantive legal rules, long established by the precedents, and…will act accordingly, without prompting by the litigant’s lawyer,” yet in that case the majority held that the doctrine did not apply to a clearly erroneous jury instruction.30
Plain-error review begins with a distinction between forfeiture and waiver. Forfeiture is a failure to assert a right in time, and it occurs by accident, neglect, or inadvertence; it leaves an error that a court may correct under the plain-error standard. Waiver, by contrast, precludes review, so a party that waived a right has no error for the court to correct.31
The second and third requirements do the most work in practice. A litigant may assume that a trial judge knows the elementary rules, so silence is most easily excused when the mistake is one the judge should have caught unaided.33 An obvious error that changed nothing about the result leaves the appellant no better off than one with a preserved but harmless error, because at every stage the court must disregard errors that do not affect any party’s substantial rights.34
The fourth requirement guides the court’s discretion, and it does not bind the court to act. Both the civil and criminal rules say a court “may” consider the error, so an appellant who clears the first three requirements has earned only the chance for the court to exercise that discretion. The standard that guides it comes from United States v. Atkinson: the court should correct a plain forfeited error that affects substantial rights if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.35 One category sits outside this structure altogether. Subject-matter jurisdiction involves the court’s power to hear a case, so a defect in it can never be forfeited or waived.36
The word plain invites confusion with two neighboring concepts. Clear error governs a judge’s findings of fact that the appellant properly challenges. A court of appeals may not reverse such a finding simply because it would have found differently; reversal is permissible only if the finding is clearly erroneous.37 Plain error governs an error the party failed to preserve, and it asks for more. Beyond an obvious error, the appellant must show an effect on substantial rights and a serious harm to the fairness, integrity, or reputation of the proceedings.38
Harmful error is the other neighbor. Evidence Rule 103(a) codifies harmless error with the statement that a party may claim error only if the error affects a substantial right, so only harmful errors warrant relief, while Rule 103(e) lets a court take notice of a plain error even if the claim of error was not properly preserved. Harmless error denotes a ruling that is incorrect but is not cause for reversal. Many of the criteria for plain and harmful error are similar, yet the two concepts should be kept apart: harmfulness asks whether the error mattered, and plainness asks whether the court may reach an error nobody preserved.39
When an exam stem describes a party who never objected to an instruction and now complains on appeal, the first answer is forfeiture. The plain-error route opens only if the facts supply an obvious error, real prejudice, and a threat to the fairness or integrity of the verdict itself, and even then the decision to act belongs to the court’s discretion. An appellant whose facts show only a debatable instruction, or one that could not have changed the result, should expect to lose the claim.
Who May Appeal
A court of appeals hears the loser’s complaint, and the winner’s position is different. The party who loses at trial generally has the right to appeal the adverse judgment, and a loser may appeal every adverse ruling to which it objected.41 Preservation limits the appellant from the other direction, because only rulings objected to in the trial court may be presented on appeal.42
A winner who dislikes part of the record usually has nowhere to go. Adverse interlocutory rulings are not reviewable on appeal when they went against the party who ultimately prevailed on the final verdict.43 Nor may a winner appeal a finding it considers erroneous if the finding was not necessary to the judgment.44 Collateral estoppel, the doctrine that bars a party from relitigating in a later case an issue an earlier case decided, explains the second rule. An unnecessary finding will not be the basis for collateral estoppel, so denying the appeal causes the winner no prejudice.45
The same logic supplies the exception. In Deposit Guaranty National Bank v. Roper, the Court recognized that an adverse ruling that can serve as the basis for collateral estoppel in later litigation gives the prevailing party standing to appeal. More generally, an appeal may be permitted from an adverse ruling collateral to the judgment on the merits at the behest of the party who prevailed on the merits, so long as that party retains a stake in the appeal that satisfies Article III.46 Electrical Fittings Corp. v. Thomas & Betts Co. illustrates the point. The decree favored the petitioners but purported to adjudge the validity of a patent, an adjudication immaterial to the disposition of the case. Because the decree stood as an adjudication of an issue that had been litigated, the petitioners were entitled to have that part of the decree eliminated.47 A winner who objects to an unnecessary remark in an opinion and a winner whose decree carries an adjudication against it come out differently for one reason: only the second faces a ruling that can be used against it later.
The posture changes when the loser appeals and the winner responds. The appellee may raise in response any issue that would sustain the judgment, whether or not the trial court decided it, and the question is one of fairness: is the case in the same basic posture it would have occupied had the issue been introduced below?48 Defending a judgment asks the court to leave things as they are, so it enlarges nothing the appellee holds.
An appellee that wants relief beyond the judgment must cross-appeal, and a third-party indemnity dispute shows why. A sues B for personal injuries, and B joins C, an insurer, as a third-party defendant on an indemnity theory. A loses, and the claim against C is dismissed because no right to indemnity arose. When A appeals, B can preserve the indemnity claim in case the main judgment is reversed only by cross-appealing against C; B cannot merely raise the issue in its responsive brief.49 B holds two positions at once. Against A it won and has nothing to appeal, while against C it lost.
These rules apply the idea behind § 2111 and Rule 61: appellate attention goes where the judgment has prejudiced someone.50 The aggrieved-party requirement asks that question about the person who appeals, and the harmless-error inquiry in the next section asks it about the error that person complains of. A party who clears both can have the court of appeals examine the claimed mistake.