Alert Regarding Preservation of Error for Appeals in Federal Court: SCOTUS Set to Decide Whether a Party Must Reassert a Purely Legal Argument Rejected at Summary Judgment in a Post-Trial Motion to Preserve That Issue for Appellate Review

By Melinda Kollross

We wish to alert all our friends in the insurance and defense industry that the United States Supreme Court will decide a significant issue regarding appellate preservation of error in federal court, and the steps that should be taken now to ensure that all errors have been preserved in any current federal litigation.

The Preservation Issue

Dupree v. Younger, No. 22-210 (U.S. Cert. granted 1-13-23), will decide whether an issue raised and denied on summary judgment must be raised again in a post-trial motion following trial to preserve that issue for appellate review.

For example, if a defendant were to seek summary judgment because she owed no duty to plaintiff, and that summary judgment was denied, must the defendant again raise the duty argument in a post-trial motion to preserve the duty issue for appeal? If you are litigating in the D.C., Federal, Second, Third, Sixth, Seventh, Ninth, or Tenth Circuits, such a legal issue need not be raised again in the post-trial motion to preserve it for appellate review. But if you are litigating in the First, Fourth or Fifth Circuits, such an issue must be raised again or else forfeited. The Eighth Circuit allows review of preliminary claims unrelated to the merits. The Eleventh Circuit has yet to rule on this issue.

A Recommendation for Preservation

The Supreme Court will resolve this conflict among the circuits, but the crucial point now is to make sure your current records are preserved for appellate review, pending a decision by the Supreme Court. Accordingly, I would urge all our friends in the insurance and defense industry to raise all issues in a federal post-trial motion, including legal issues rejected at the summary judgment stage, regardless of the Circuit. As always, if you have any questions on any preservation issue, please consult an experienced appellate practitioner.

We will monitor Dupree and report further after the Supreme Court issues its decision.