The raise-or-waive rule, arguably one of the most important rules of appellate practice, also is one of the Rhode Island Supreme Court’s most frequently invoked legal doctrines. In its last term, the Rhode Island Supreme Court invoked the raise-or-waive doctrine in ten civil decisions. In all ten of those decisions, the Supreme Court concluded that the raise-or-waive doctrine precluded review of at least one issue raised on appeal,[1] underscoring the importance of properly raising issues and objections both at trial and on appeal.
Preservation In The Trial Court
As a general matter, the Rhode Island Supreme Court has “long held that ‘a litigant cannot raise an objection or advance a new theory on appeal if it was not raised before the trial court.’” Laplante v. Rhode Island Hospital, 110 A.3d 261, 267 (R.I. 2015) (quoting State v. Bido, 941 A.2d 822, 829 (R.I. 2008)); see also Supreme Court Staunchly Adheres to Raise or Waive Rule; cf. Narrow Exception to the Raise or Waive Rule Preserves Some Issues for Appeal. Thus, when an appellant argued last term that the trial justice had erred by telling the jury that certain of the claims in the case had been dismissed, the raise-or-waive rule prevented the Rhode Island Supreme Court from considering the issue on appeal because the appellant had failed to object to the trial justice’s statement at trial. Thornley v. Community College of Rhode Island, 107 A.3d 296, 304 n.9 (R.I. 2014).
The Supreme Court has applied the raise-or-waive rule when trial counsel has failed to properly preserve objections at various stages of the lower court proceedings. There are, however, notable trends. Most often the raise-or-waive doctrine is applied in the following contexts: (1) evidentiary rulings; (2) jury instructions and (3) motions for judgment as a matter of law.
With respect to evidentiary rulings, the Supreme Court consistently has held that “if ‘the introduction of evidence is objected to for specific reasons, other grounds for objection are waived and may not be raised for the first time on appeal.’” O’Connor v. Newport Hospital, 111 A.3d 317, 327 (R.I. 2015) (quoting Robideau v. Cosentino, 47 A.3d 338, 341 (R.I. 2012) (mem.)); see also Only the Basis for Objections Articulated on the Record are Preserved for Appeal. The Supreme Court’s holdings highlight the need for counsel to inform the trial justice of all the bases for his or her objection to the introduction of evidence. For example, when an appellant argued last term that the trial justice had erred by admitting into evidence a medical report and testimony concerning the report because it was unduly prejudicial under Rule 403 of the Rhode Island Rules of Evidence, the Supreme Court held that the appellant had waived that argument by objecting to the evidence only on the grounds of relevancy. Thornley, 107 A.3d at 302.
The Rhode Island Supreme Court is most “exacting about applying the raise-or-waive rule in the face of inadequate objections to jury instructions.” Ferris Avenue Realty, LLC v. Huhtamaki, Inc., 110 A.3d 267, 285 (R.I. 2015). In addition to the raise-or-waive rule, Rule 51(b) of the Superior Court Rules of Civil Procedure “‘bars a party from challenging an erroneous instruction unless [the party] lodges an objection to the charge which is specific enough to alert the trial justice as to the nature of [the trial justice’s] alleged error.’” Id. (quoting Botelho v. Casters, Inc., 970 A.2d 541, 545 (R.I. 2009)).
Accordingly, in Ferris Avenue Realty, LLC, the Supreme Court refused to address the defendant’s challenge to the trial justice’s spoliation jury instruction because the defendant had not objected to the instruction at trial. Ferris Avenue Realty, LLC, 110 A.3d at 285-86. Similarly, in Berman, the Supreme Court declined to address issues related to the jury instructions because plaintiffs had not raised...
