Thou shalt not sandbag

In the last post, we looked at the jurisdictional foundation of the law on preserving error. Today we will look at one of two purposes of this law: prevention of sandbagging.

What is sandbagging? Black’s Law Dictionary defines it as “[t]he act or practice of 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.” Black’s Law Dictionary 1542 (Bryan A. Garner, ed., 10th ed., Thomson Reuters 2014). Justice Scalia once described 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. Commissioner of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring).

Appellate courts hate sandbagging. As proof of this proposition, here are some quotable quotes:

• “The Sixth Circuit’s decision to require the filing of objections is supported by sound considerations of judicial economy.... 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.” Thomas v. Arn, 474 U.S. 140, 147–48 (1985).
• “The rationale behind this Court’s opinion in Lewis was distaste for the ‘sandbagging’ practice in which defendants circumvent district judges and raise objections for the first time on appeal.” Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir. 1992).
• “If the record indicates that counsel for the complaining party deliberately avoided making the proper objection or request, plain error will almost never be found. This court will not tolerate ‘sandbagging’ defense counsel lying in wait to spring post-trial error.” U.S. v. Sisto, 534 F.2d 616, 624 n. 9 (5th Cir. 1976).

The no-sandbagging rule is a consequence of the appellate court’s jurisdiction, which is limited to reviewing the trial court’s actions. It is also a matter of fairness to the district court. In the appellate courts’ view, it is unfair to the district court to complain of that court’s error on appeal without having given that court a fair opportunity to avoid or correct its own error.