Attorney Howard Bashman.

Upon Further Review

A core principle of appellate review is that issues must first be properly raised and presented to the trial court before they can be considered and resolved on appeal. This rule of appellate waiver seeks to promote the goals of fairness and efficiency. It is only fair to allow the trial court to consider and resolve legal issues before an appellate court does so. And the rule encourages efficiency, because chances are the trial court would have properly resolved the issue in the first instance had it been raised and presented, thereby avoiding the need for time-consuming and costly appellate review of the issue.

This principle of appellate waiver does have certain exceptions, however, and herein I argue for the recognition of an exception for a trial court's failure to properly recognize the consequences that flow from its rejection of a party's argument. Consider two examples. The first is where the opposing parties to a lawsuit each file motions for summary judgment asserting that the case should be resolved in their favor as a matter of law without the need for a trial. And the second arises in disputes over the meaning of a written contract, where the opposing parties disagree over the contract's meaning, but each argues that the contract unambiguously bears the meaning that favors its position.