To appropriately preserve an issue for appeal is frankly confusing to many attorneys due to differing rules depending on the issue or procedural posture (presumably why appellate attorneys are more commonly used during trial). On May 25th, the US Supreme Court handed down Dupree v. Younger, 598 U.S. __ (2023) clarifying preservation requirements from denied summary judgment orders. When a federal court denies summary judgment on sufficiency of evidence grounds, a party must raise the argument again post-trial to preserve it for appeal as per the Court’s prior ruling in Ortiz v. Jordan, 562 U.S. 180 (2011). When a court denies summary judgment on a purely legal issue, the Court unanimously held that the issue is preserved in an appeal from a final judgment without having to raise it again post-trial. The Supreme Court distinguished this from their prior rule in Ortiz by explaining that sufficiency or factual issues which were previously denied at summary judgment must be evaluated based on the totality of the evidence adduced at trial. A purely legal issue decided on summary judgment is not changed by factual evidence at trial.
Practically speaking, however, some issues are mixed questions of law and fact or fall in the grey area, so how can trial counsel be certain that their issue is preserved? As the Court acknowledged, “prudent counsel” might “renew their arguments in a Rule 50 motion out of an abundance of caution”. Notably, even while clarifying the dual standard, the Court still remanded the case back down to the Circuit to evaluate if Younger’s denial was on a purely legal issue. Prudent counsel likely does not want to waste their time briefing whether something was preserved and whether it was denial of a purely legal issue. As such, while Dupree might help the “unwary” litigant, to avoid any doubt, we continue to encourage counsel to renew their arguments post-trial to protect their clients and obviate the need for wading into this thorny issue of preservation.