June 27, 2013 Articles

Rule 50 and Purely Legal Arguments: A Circuit Split

Counsel should always research and consider the position of the circuit in which he or she is practicing.

By Kelli Benham Bills

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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