As the appellate practitioner knows all too well, error-preservation issues can close the door to a successful appeal. Counsel is often faced with the unenviable task of informing the client that, despite counsel’s best efforts, an appeal’s likelihood of success is minimal due to a failure-to-preserve error at the district-court level. However, before giving such bad news to the client, consider this: A majority of the federal courts of appeals have held that counsel need not raise in a Rule 50 motion those “purely legal” arguments that have previously been rejected at the summary-judgment stage. Thus, when the subject of appeal is a purely legal issue—claim preclusion, for example—that has been raised but rejected at the summary-judgment stage, appellate counsel may be able to press that argument on appeal despite a failure to re-raise the argument in a Rule 50 motion.
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