It’s a situation most appellate counsel have faced: a client lost in the lower court, and there is a powerful argument for reversal that was not raised below. This is a problem, because appellate courts generally will not reverse based on an argument that was not presented in the lower court. And with good reason: Lower courts adjudicate issues in the first instance, and should be reversed only when they make a mistake in assessing what is presented to them. If the lower court was not given the chance to pass on the argument, it is hard to claim that it made a mistake.

Nevertheless, in some circumstances an appellate court will consider an argument even if it was not presented in the lower court. The Appellate Division, for example, has broad “jurisdiction to address unpreserved issues in the interest of justice.” Merrill by Merrill v. Albany Med. Cntr. Hosp., 71 N.Y.2d 990, 991 (1988). On the other hand, the Court of Appeals “may not address such issues in the absence of objection in the trial court.” Id.