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As most lawyers know, the general rule that an appellate court will not consider an argument raised for the first time on appeal is riddled with exceptions and ambiguities. The Supreme Court made sure of that when it considered the issue and “[a]nnounced no general rule,” instead leaving it “primarily to the discretion of the courts of appeals, to be exercised on the facts of the individual cases.” Singleton v. Wulff, 428 U.S. 106, 121 (1976). Thus, the rule against raising new issues on appeal may be “deeply embedded in our jurisprudence,” but in the end it “is a matter of discretion.” Nat’l Ass’n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995). This unbridled discretion to consider or reject new arguments on appeal has led one scholar to nickname it the “gorilla rule,” based on the well-known riddle that asks where an 800-pound gorilla sleeps — anywhere it wants. Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand. L. Rev. 1023 (1987). CONFUSING CASE LAW FOR CONFRONTING THE ‘GORILLA’ For practitioners confronting this gorilla, the case law is confusing, but provides some guidance. Sufficiently Argued Below. There is no bright-line rule for determining whether an argument has been sufficiently raised below, and courts often attempt to explain sufficiency with generalities, noting that a party “must press, not merely intimate, an argument,” Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996), or that an argument cannot be raised in a “perfunctory and underdeveloped” manner. Kensington Rock Island L.P. v. American Eagle Historic Partners, 921 F.2d 122, 124-25 (7th Cir. 1990). But in general, the touchstone is whether the party sufficiently apprised the trial court of the argument it is pressing on appeal, so that the trial court had an opportunity to rule on it. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992); Kensington, 921 F.2d at 125 n.1. This stems from a policy of respecting the trial court’s function as well as fairness to the parties. Thus, a vague reference to an argument, without any legal reasoning, will be deemed waived. See, e.g., Kensington, 921 F.2d at 25. Similarly, merely citing a statute, case or other authority, without expressly articulating the argument that flows from those authorities, is inadequate if the argument was not considered by the trial court. See, e.g., Peck v. Lan-sing School Dist., 148 F.3d 619, 626 (6th Cir. 1998). By contrast, consistent with the general principle that an appellate court can review any issue ruled on by the trial court, even a “skeletal argument below” may be “fleshed out and emphasized on appeal” where it is clear that the trial court recognized and considered the issue. Bailey v. Int’l Bhd. of Boilermakers, 175 F.3d 526, 529-30 (7th Cir. 1999). Arguments first raised in a post-trial motion have received inconsistent treatment on appeal. Appellate courts have held that these arguments are not preserved for appeal, e.g., Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 723 (10th Cir. 1993) (issue first raised in post-trial motion not preserved). On occasion, however, courts of appeals have reached such arguments. See, e.g., New York Life Ins. Co. v. Brown, 84 F.3d 137, 143 n.4 (5th Cir. 1996) (argument first made in motion to vacate judgment preserved on appeal); Whittaker, 953 F.2d at 515 (argument first made in motion for reconsideration preserved on appeal). Appellate courts obviously will not consider a new argument that directly conflicts with the legal theory presented below. Onishea v. Hopper, 171 F.3d 1289, 1305 (11th Cir. 1999). But having argued a related theory in the trial court will not necessarily preserve a new argument on appeal. For example, a party that argued negligent failure to warn below did not preserve a negligent design claim on appeal. Grasmick v. Otis Elevator Co., 817 F.2d 88, 89-90 (10th Cir. 1987). Courts will also find waiver when a party advances an argument that is related to, but significantly broader than, the theory it pressed below, particularly where the new argument raises “important issues of first impression.” Frank v. Colt Indus. Inc., 910 F.2d 90, 99-100 (3rd Cir. 1990) (refusing to consider related argument on appeal that depended on “completely different” provision of severance-pay plan and would provide employer with far broader discretion over severance pay than argument presented below). Courts are more accepting of new arguments they view as variations of a fundamental claim that was clearly preserved below. The Supreme Court, for example, has held that a regulatory taking argument was not waived by a party who argued physical taking below because they were not separate claims, but “separate arguments in support of a single claim-that the ordinance effects an unconstitutional taking.” Yee v. City of Escondido, 503 U.S. 519, 534-35 (1992). See also Gallenstein v. United States, 975 F.2d 286, 290 (6th Cir. 1992) (implied repeal argument below sufficient to preserve express repeal argument on appeal, because both supported basic claim that a statutory amendment repealed the provision at issue). Basically, appeals courts don’t want to prevent parties from improving arguments that were presented in a more rudimentary form below. “[O]ne of the primary purposes of appellate review” would be undermined, after all, if a court “refuse[d] to consider each nuance or shift in approach urged by a party simply because it was not simply urged below.” Universal Title Ins. Co. v. United States, 942 F.2d 1311, 1314 (8th Cir. 1991). Exceptions. Even if a legal argument clearly was not presented below, appellate courts occasionally exercise their discretion to address it. Jurisdictional issues, of course, can be raised at any time, whether or not preserved at trial. See, e.g., Swinney v. General Motors Corp., 46 F.3d 512, 517-18 (6th Cir. 1995) (subject-matter jurisdiction); Edelman v. Jordan, 415 U.S. 651, 677-78 (1974) (state’s sovereign immunity). Beyond this obvious exception, courts generally agree that they will consider waived arguments only under “exceptional circumstances.” Walton v. Mental Health Ass’n, 168 F.3d 661, 670 n.9 (3rd Cir. 1999). In this regard, most courts consider whether failing to address the argument would result in a manifest injustice and whether the argument involves a purely legal question that can be decided on the existing factual record. This is consistent with the rule’s underlying respect for the role of the trial court as the proper venue for establishing the relevant facts. That is not to say that the courts have developed uniform standards. Compare Batiansila v. Advanced Cardiovascular Sys., 952 F.2d 893, 896 (5th Cir. 1992) (stating that it may consider waived argument if a “miscarriage of justice” would otherwise result and it raises a pure issue of law) with Readco Inc. v. Marine Midland Bank, 81 F.3d 295, 302 (2nd Cir. 1996) (stating that it may consider waived argument to avoid “manifest injustice” or if argument presents pure issue of law) and Universal Title, 942 F.2d at 1314-15) (stating that it may consider waived argument if resolution is “beyond any doubt,” or if injustice might otherwise result or if it raises pure issue of law). Even within a single circuit, different panels have reached seemingly inconsistent results on the same issue. In Michael-Regan Co. v. Lindell, 527 F.2d 653, 656 (9th Cir. 1975), the court refused to consider an argument first raised on appeal that California law, rather than Washington law, should apply to determine whether attorney fees were recoverable, while a different panel in Telco Leasing Inc., 630 F.2d 691, 693-94 (9th Cir. 1980), considered the very same argument — that California rather than Illinois law should apply to an attorney fees question — because it was purely a question of law and was obviously correct as a matter of law. The distinction between these two cases rests on another basis for reaching waived arguments, one suggested by the Supreme Court in Singleton — a court may be justified in reaching an issue not raised below “where proper resolution is beyond any doubt.” 428 U.S. at 121. Appellate courts don’t like to reach an obviously wrong result, so you stand a better chance of advancing a new argument on appeal if it’s clearly right as a matter of law. A THOUGHTFUL RULING FROM THE 1ST CIRCUIT A Comprehensive Test. In National Association of Social Workers v. Harwood, 69 F.3d 622, 625-29 (1st Cir. 1995), the 1st Circuit penned one of the more thoughtful opinions in this area. Acknowledging that appeals courts should address an argument first raised on appeal only if “the equities heavily” favor doing so, it culled six factors that courts have considered, in one form or another, in making this determination: 1) whether the new argument raises a pure issue of law that could be decided without further fact-finding; 2) whether the argument raises an issue of constitutional magnitude; 3) whether the argument is “highly persuasive” and the failure to consider it would threaten a miscarriage of justice; 4) whether considering the argument would work any special prejudice or inequity to the other party; 5) whether the party’s failure to raise the argument below seems inadvertent or done deliberately to yield a tactical advantage; and 6) whether the argument implicates matters of “great public moment,” such as federalism, comity and respect for the independent democratic institutions. Concluding that all these factors were met, the court in Harwood considered the issue of legislative immunity from suit, which the state legislative leaders who had been sued had “inexplicably neglected” to raise below. Courts do not necessarily require all six factors identified by Harwood to be met. Even the 1st Circuit has considered a waived argument despite the absence, for example, of an issue of constitutional magnitude. Chestnut v. City of Lowell, 305 F.3d 18, 21 (1st Cir. 2002). But the lesson of Harwood is clear: the more factors met, the better the chance of having a waived argument considered on appeal. Aaron S. Bayer is the chairman of the appellate practice group at Wiggin & Dana of New Haven, Conn. He can be reached at [email protected].

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