Many many years ago, in a case far far away, I drafted a brief that included these two sentences:
As the Supreme Court held in Davis v. Witt, a waived objection cannot be used after an adverse verdict to justify a new trial. To hold otherwise would countenance sandbagging.
Some folks who were critiquing the brief objected to the word sandbagging; they thought it was too colloquial. To placate them, I rewrote the second sentence to read, "To hold otherwise would countenance what Louisiana courts refer to as 'sandbagging,'" dropping a footnote to cite two Louisiana reported decisions using the word. All the while, I thought that the people doing the critiquing needed to visit a proctologist to have those rods removed from their — oh well, never mind.
Two days ago, I was preparing a CLE presentation for Louisiana pro bono lawyers on preserving errors for appeal. It occurred to me that 90% of preservation of error boils down to one principle: No sandbagging. To explain what sandbagging means, I did some research into the word. Here is some of what I found:
The Oxford English Dictionary explains that the verb sandbag comes from the noble game of poker. It means, "To refrain from raising at the first opportunity in the hope of raising by a greater amount later." More generally, to sandbag is "To underperform in a race or competition in order to gain an unfair handicap or other advantage.... Hence sandbagging vbl. n."
Sandbagging has a special meaning in legal contexts. Black's Law Dictionary (7th ed.) defines sandbagging as "[a] trial lawyer's remaining cagily silent when a possible error occurs at trial, with the hope of preserving an issue for appeal if the court does not correct the problem. ● Such a tactic does not usu. preserve the issue for appeal because objections must be promptly made to alert the trial judge of the possible error."
Sandbagging has found its way into the writings of our highest court. Justice Scalia once defined sandbagging as "suggesting or permitting, for strategic reasons, that the trial court pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error." Freytag v. C.I.R., 501 U.S. 868, 895 (1991) (Scalia, J., concurring). Other Supreme Court justices who have used sandbagging in their opinions include:
- Justice Stevens, in U.S. v. Williams, 504 U.S. 36, 59 n. 5 (1992) (Stevens, J., dissenting): "Moreover, the Government's failure to object to the application of the Page rule deprived the Court of Appeals of an opportunity to reexamine the validity of that rule in the light of intervening developments in the law. 'Sandbagging' is just as improper in an appellate court as in a trial court."
- Jusice O'Connor, in Murray v. Carrier, 477 U.S. 478, 491–92 (1986): "Nor do we agree that the possibility of 'sandbagging' vanishes once a trial has ended in conviction, since appellate counsel might well conclude that the best strategy is to select a few promising claims for airing on appeal, while reserving others for federal habeas review should the appeal be unsuccessful."
- Justice Thurgood Marshall, in Thomas v. Arn, 474 U.S. 140, 147–48 (1985): "The Sixth Circuit's rule, by precluding appellate review of any issue not contained in objections, prevents a litigant from 'sandbagging' the district judge by failing to object and then appealing."
So now we know three things:
- We know what sandbagging means in a legal context.
- We know that appellate courts hate sandbagging.
- We know that the word sandbagging, if good enough for the Supreme Court, is certainly good enough for a legal brief.