In any type of business or civil litigation, it is important not to try and change legal arguments in the middle of a case or the middle of appeal. Judges are generally not sympathetic to parties who present arguments that openly contradict their prior claims. Appeals courts will not consider arguments that have not been previously addressed before a trial judge.
Court Rejects Effort to Try Case Under Different Law
Here is a recent example from here in New York. The underlying litigation involved a dispute over unpaid invoices and delayed shipments between a company in in New York (the plaintiff) and a company in Italy (the defendant). The plaintiff imported pasta manufactured by the defendant.
A federal judge in Brooklyn, applying New York contract law to the facts of the case, ended up ruling for the defendant. On appeal, the plaintiff argued the court was wrong, not because she incorrectly applied New York law, but because she should have applied a different legal standard altogether—specifically, the Convention on the International Sale of Goods (CISG), an international convention to which the United States and Italy are parties.
The Second U.S. Circuit Court of Appeals held the plaintiff's argument was without merit. While the CISG “is mandatory unless the parties expressly opt out,” the court said, the “history of the litigation” clearly demonstrated the plaintiff had chosen to apply New York instead, at least until the trial court ruled against it. First, the plaintiff never once cited the CISG in its original lawsuit. Second, and more importantly according to the appeals court, the plaintiff asserted a claim under New York's statute of frauds, which is “inconsistent with application of the CISG but cognizable under New York law.” Finally, the plaintiff's attorney said in open court that his client was “comfortable with New York law applying.” Yet a month later, in opposition to the defendant's motion for a summary judgment, the plaintiff raised the CISG argument for the first time. Neither the trial court nor the Second Circuit were amused.
Again, it should be emphasized that the legal issue was not whether the CISG could apply to the facts of this case. It did, at least according to the courts. The question was whether the plaintiff's voluntary conduct constituted a decision to “opt out” of the CISG in favor of resolving the lawsuit under New York law.