A Reminder to Watch the Process

Litigation isn’t only about determinations of rights, responsibilities, and remedies. A significant part of lawsuits is maintaining a coherent process so that the courts can, in effect, direct the heavy traffic. This means that, more often than one might think, a case is decided based on a procedural requirement, and often for legitimate reasons. A recent case in Oregon illustrates the importance of procedure.

One of the most important principles of the appeals process is that the lower court has to be given an opportunity to correct itself and save the system the time and expense of the appeal. In order to “preserve” a point for appeal, the person who wants to appeal usually has to raise an objection almost immediately. The case in question applied the preservation requirement to a jury verdict that the losing side thought was internally inconsistent.

An employee sued her employer for wrongfully firing her, sex discrimination based on harassment, and battery. The case went to trial, and the jury ruled that the employer had discriminated and committed battery, but that it had not wrongfully fired the employee. After the judge had accepted the verdict and let the jury go, the employer asked for a new trial because it thought the verdict was inconsistent. (Basically, the employer thought that the way the case was presented, the jury had to have found that the same acts did cause damage on the discrimination claim and did not cause damage on the wrongful firing claim.)

That question, however, wasn’t answered. The Court of Appeals pointed out that the preservation requirement had been interpreted in previous cases to require an objection to be made while the jury was still in the courtroom and the case sent back to the jury to try to clarify its findings. The employer hadn’t done that.

There’s a good reason for the requirement that the jury be asked to clarify. If an inconsistency is removed when the jury reconsiders, that dispute will go away and there won’t be anything to appeal. The case would be finished.

In addition, many points argued as error may be found harmless even if properly preserved. That means that the overall ruling would have been the same anyway, so there’s no reason for a do-over.

I recall a case in which I had a dispute with the judge whether I would be allowed to demonstrate that I had preserved a point for appeal. As a result of that dispute, I was prepared to argue that my request to preserve the point was refused, so the Court of Appeals wouldn’t be able to decide if the error was harmless. The parties settled while the appeal was pending, so it was never ruled on.

If your lawyer doesn’t object to a ruling that you think is wrong, it may be because the lawyer decided it was probably harmless. Some lawyers save their objections for major points so that the judge knows they aren’t crying wolf. Some lawyers object all over the place. Both approaches can work. If you think it’s going to be an issue at an upcoming hearing or trial, talk to your lawyer about it so that you know what to expect.


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