The Raise-Or-Waive Rule: A Trap For Trial And Appellate Counsel

The raise-or-waive rule, arguably one of the most important rules of appellate practice, also is one of the Rhode Island Supreme Court’s most frequently invoked legal doctrines.  In its last term, the Rhode Island Supreme Court invoked the raise-or-waive doctrine in ten civil decisions.  In all ten of those decisions, the Supreme Court concluded that the raise-or-waive doctrine precluded review of at least one issue raised on appeal,[1] underscoring the importance of properly raising issues and objections both at trial and on appeal.

 Preservation In The Trial Court

As a general matter, the Rhode Island Supreme Court has “long held that ‘a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.’”  Laplante v. Rhode Island Hospital, 110 A.3d 261, 267 (R.I. 2015) (quoting State v. Bido, 941 A.2d 822, 829 (R.I. 2008)); see also Supreme Court Staunchly Adheres to Raise or Waive Rule; cf. Narrow Exception to the Raise or Waive Rule Preserves Some Issues for Appeal.  Thus, when an appellant argued last term that the trial justice had erred by telling the jury that certain of the claims in the case had been dismissed, the raise-or-waive rule prevented the Rhode Island Supreme Court from considering the issue on appeal because the appellant had failed to object to the trial justice’s statement at trial.  Thornley v. Community College of Rhode Island, 107 A.3d 296, 304 n.9 (R.I. 2014).

The Supreme Court has applied the raise-or-waive rule when trial counsel has failed to properly preserve objections at various stages of the lower court proceedings.  There are, however, notable trends.  Most often the raise-or-waive doctrine is applied in the following contexts:  (1) evidentiary rulings; (2) jury instructions and (3) motions for judgment as a matter of law.

With respect to evidentiary rulings, the Supreme Court consistently has held that “if ‘the introduction of evidence is objected to for specific reasons, other grounds for objection are waived and may not be raised for the first time on appeal.’”  O’Connor v. Newport Hospital, 111 A.3d 317, 327 (R.I. 2015) (quoting Robideau v. Cosentino, 47 A.3d 338, 341 (R.I. 2012) (mem.)); see also Only the Basis for Objections Articulated on the Record are Preserved for Appeal.  The Supreme Court’s holdings highlight the need for counsel to inform the trial justice of all the bases for his or her objection to the introduction of evidence.  For example, when an appellant argued last term that the trial justice had erred by admitting into evidence a medical report and testimony concerning the report because it was unduly prejudicial under Rule 403 of the Rhode Island Rules of Evidence, the Supreme Court held that the appellant had waived that argument by objecting to the evidence only on the grounds of relevancy.  Thornley, 107 A.3d at 302.

The Rhode Island Supreme Court is most “exacting about applying the raise-or-waive rule in the face of inadequate objections to jury instructions.”  Ferris Avenue Realty, LLC v. Huhtamaki, Inc., 110 A.3d 267, 285 (R.I. 2015).  In addition to the raise-or-waive rule, Rule 51(b) of the Superior Court Rules of Civil Procedure “‘bars a party from challenging an erroneous instruction unless [the party] lodges an objection to the charge which is specific enough to alert the trial justice as to the nature of [the trial justice’s] alleged error.’”  Id. (quoting Botelho v. Casters, Inc., 970 A.2d 541, 545 (R.I. 2009)).

Accordingly, in Ferris Avenue Realty, LLC, the Supreme Court refused to address the defendant’s challenge to the trial justice’s spoliation jury instruction because the defendant had not objected to the instruction at trial.  Ferris Avenue Realty, LLC, 110 A.3d at 285-86.  Similarly, in Berman, the Supreme Court declined to address issues related to the jury instructions because plaintiffs had not raised their objections to the instructions at trial.

An objection on the record is required “even if the party has previously made a request for a particular instruction or if the trial justice has previously expressed an opinion on a particular instruction at an unrecorded charging conference or otherwise.”  Berman v. Sitrin, 101 A.3d 1251, 1266-67 (R.I. 2014).  The rationale behind such a rigorous requirement is “‘to allow the trial justice an opportunity to make any necessary corrections to his or her instructions before the jury begins its deliberations.’”  Ferris Avenue Realty, LLC, 110 A.3d at 285 (quoting DiFranco v. Klein, 657 A.2d 145, 147 (R.I. 1995)); see also 2014 Year in Review – Raise or Waive Rule.

Rhode Island’s case law also makes clear that when a party moves for judgment as a matter of law but fails to renew that motion at the close of all the evidence and/or after the jury’s verdict, it has waived that issue.  See Pawtucket Redevelopment Agency v. Brown, 106 A.3d 893, 901 n.7 (R.I. 2014).  Indeed, the failure to renew a motion for judgment as a matter of law is “fatal to [a party’s] efforts to renew the arguments” on appeal.  Id. (citing Blue Coast, Inc. v. Suarez Corp. Indus., 870 A.2d 997, 1008 (R.I. 2005)).

Preservation On Appeal

The raise-or-waive rule also is invoked when an issue is not properly raised on appeal.  Indeed, “[e]ven when a party has properly preserved its alleged error of law in the lower court, a failure to raise and develop it in its briefs constitutes a waiver of that issue on appeal and in proceedings on remand.”  McGarry v. Pielech, 108 A.3d 998, 1005 (R.I. 2015). 

Article I, Rule 16(a) of the Supreme Court Rules of Civil Procedure codifies this common law doctrine, providing “[e]rrors not claimed, questions not raised and points not made ordinarily will be treated as waived and not considered by the court.”

In Hines Road, LLC v. Hall, 113 A.3d 924, 931 n.6 (R.I. 2015), the Supreme Court reminded litigants that “consistent with Article I, Rule 16(a) . . . a party’s failure to include a particular issue in his, her, or its brief on appeal results in a waiver of that issue.”  The Rhode Island Supreme Court “expect[s] if not ‘demand[s] that the briefs before [it] will contain all the arguments that the parties wish [it] to consider.’” McGarry v. Pielech, 108 A.3d 998, 1004 (R.I. 2015) (quoting Estate of Meller v. Adolf Meller Co., 554 A.2d 648, 654 (R.I. 1989)); see also Renewable Resources, Inc. v. Town of Westerly, 110 A.3d 1166, 1173 (R.I. 2015) (noting that “‘even when a party has properly preserved its alleged error of law in the lower court, a failure to raise and develop it in its briefs constitutes a waiver of that issue on appeal and in proceedings on remand.’” (quoting McGarry, 108 A.3d at 1005).

Even if a party has raised an issue in its brief, the Supreme Court will deem that issue waived if there is no meaningful briefing or analysis of the issue. In Bettez v. Bettez, 114 A.3d 82 (R.I. 2015), the Court emphasized that “‘[s]imply stating an issue for appellate review without a meaningful discussion thereof or legal briefing of the issues, does not assist the Court in focusing on the legal questions raised, and therefore constitutes a waiver of that issue.’” Id. at 87 n.6 (quoting Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002)).

As Judge Posner recognized years ago, “[b]revity may be the soul of wit, but seismic constitutional change is not a laughing matter.”  Hospital Corp. of America v. FTC, 807 F.2d 1381, 1392 (7th Cir. 1986) (holding that briefing which spanned four pages was “not an adequate presentation of the case” for the “revolutionary result” the appellant requested).

Thus, the Supreme Court’s 2014-2015 raise-or-waive jurisprudence serves as an important reminder to both trial and appellate counsel of the need to properly preserve objections and issues for appellate review.

[1] Even in the one instance where the Court did not find waiver of an issue, it paused to note that the party’s “Rule 12A statements [came] dangerously close to constituting a waiver of the issue on appeal.” Pawtucket Redevelopment Agency v. Brown, 106 A.3d 893, 901 n.7 (R.I. 2014).