I would appreciate any guidance for acceptable material for appeal work. I have motioned the appellate court following a final judgement and would like to know if argument never heard before the lower court can be used in my appeal. It was only argued in my motion before the appellate court.
The general rule for appeals is that you can't argue any issue to the Appellate Court that you didn't raise during the proceedings before the Trial Court. This is called preservation. However, the Appellate Court may consider your new argument anyway if its in the interest of justice. So, make your new argument (as long as its not frivolous) but in your point heading for the new argument, mark it with an asterisk and note that it was not raised below. This is required by Court rules.
In addition to arguing that "the interests of justice" require that the Appellate Court entertain the issue, if the issue raises a constitutional question it should be considered on appeal even if not raised below. Also, the Appellate Court may give you some extra leeway since you are handling the case pro se. In short, if it is a serious issue, you should raise it in the appeal.
appeals can be complex. You can, as a rule, only raise arguments that were made "below" that is at the trial court level.. The reason is that the party taking the appeal, in the first instance, has to show that the trial court was wrong in its decision. Can other legal issues be raised? It is done and requires some delicacy. Can factual issues be raised: no.
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