Friday, February 20, 2015

"A first bite at the apple"

That's the title of Justice Hoffstadt's piece in today's DJ. He asks, "What is the job of the appellate courts - to get it right or to make sure the trial court didn't get it wrong?" Then he answers, "Sometimes, it's the former; other times, it's the latter. But this answer prompts further questions: When do the appellate courts don these different hats and, more importantly, what determines which hat they wear?"
He answers with some factors to consider:
(1) Relative expertise. Appellate judges are often seen as the "law geeks," and this (sometimes affectionate) label is not without foundation.  
 (2) Investment of judicial resources. The further along a case is in the trial court at the time of appellate review, the more hesitant an appellate court will be to consider an issue not raised below.
  (3) Effect on attorney behavior. The more likely an appellate rule will encourage timely objections (and the concomitant savings of judicial resources) and will discourage "sandbagging" (that is, intentional withholding of a meritorious objection from the trial court in order to raise the objection on appeal of an unfavorable judgment to obtain a "second bite at the apple"), the more likely that rule will be followed.  
(4) The nature of the issue to be raised. The more fundamental an issue to the legitimacy or the fairness of the proceedings before the trial court, the more likely an appellate court will be inclined to take up that issue for the first time on appeal.