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Considering New Issues On Appeal: The General Rule And The Gorilla Rule, Robert J. Martineau

Vanderbilt Law Review

One aspect of the appellate process that most bedevils judges and lawyers occurs when a party attempts to raise an issue in the appellate court that it did not present to the trial court. This question creates problems for the following reasons: (1) the general rule against considering new issues on appeal; (2) the perception that it is unfair to the appellant if the new issue is not considered, yet it is unfair to the appellee if the new issue is considered; and (3) the failure or inability of appellate courts to articulate any principled basis for determining when and …