Defining the Appellate Universe: Does FRCP 52(b) Impose a Duty on Litigants?

The difference between the almost right word and the right word is . . . the difference between the lightning bug and the lightning. —Mark Twain 

Judges are not ferrets. —Linrud v Linrud 

The quotations above highlight a central tension in the law: care and thoroughness versus preservation of resources. One aspect of this tension is revealed by a circuit split related to the Federal Rules, in particular the question of whether Rule 52(b) imposes a duty on litigants to preserve an issue for appeal or risk waiving it. Rule 52(b) provides that “[o]n a party’s motion . . . after entry of judgment, the court may amend its findings—or make additional findings—and may amend the judgment accordingly.” The rule permits a party to file a motion for findings after the judgment; whether it requires such a motion in order to preserve certain issues for appeal is open to debate.