Waiving an argument on appeal is usually a bad thing. Here are seven things NOT to do if you want to set your case up for success on appeal. We’ve also included some practice tips to help avoid these pitfalls in future cases.
1. Don’t Mention the Argument to the District Court.
The first and most obvious way to keep the appellate court from considering your arguments is by failing to raise them in the district court. Countless cases describe the general rule that appellate courts will not consider an issue raised for the first time on appeal. This is particularly the case in the civil arena, where plain error review is rare. Best practice is to thoroughly raise all arguments below. One way to avoid missing issues that may need to be raised is through the use of a simple checklist.
Practice Tip: Perform a thorough analysis of your case, identifying legal issues, instructions, or pieces of evidence that are likely to need rulings by the court.
Take advantage of scheduling conferences or other pretrial conferences to get the judge’s view on when she wants to hear motions or arguments on the important legal issues. In the flurry of complex motions practice or trial before the lower court, the last thing on many advocates’ minds is preserving arguments for appeal. But it is a crucial part of a trial litigator’s job. Being proactive before the district court is key.
2. Raise the Argument to the Clerk but not the Court.
Another way that an argument could be considered waived is if it is raised, but not in the procedurally proper way. A recent case from the Tenth Circuit illustrates this point.1 The plaintiffs in a section 1983 suit lost on summary judgment and costs were imposed against them by the clerk of court. The plaintiffs ultimately appealed the imposition of costs to the Tenth Circuit. On appeal, the court concluded that the plaintiffs had waived their arguments by not properly raising them to the district court. Rule 54 requires that before an appeal may be had of an award of costs, the costs must be challenged in the district court. The plaintiffs in this case had filed a motion challenging the costs award, but it consisted of one sentence and contained no argument. The plaintiffs argued, however, that they had preserved their arguments because they had previously presented them when the issue was before the clerk of the court, through their response to the defendant’s bill of costs. The Tenth Circuit disagreed, explaining that “Raising the issue before the Clerk of the Court does not qualify as raising it before the district court.” In other words, presenting the argument to the clerk, but not to the district court itself, was insufficient to preserve the issue for appeal.
Practice Tip: Know the procedure that applies to your case or issue.
3. Raise Your Argument for the First Time in Some Reply Brief.
You may think you are in the clear as long as you can point to some place where your argument made its way in front of the court. That assumption may not always prove true. For example, on several occasions, the 10th Circuit has suggested that raising an argument for the first time in a reply brief in support of a motion before the district court still waives that argument on appeal.2 The same holds true for briefing before the appellate court. Failure to raise an argument in the Opening Brief will result in waiver of any argument made in the Reply.3
Practice Tip: Seeing your opponent’s arguments often triggers new arguments in your own case. Try to replicate this process before your first brief is due. Before submitting the principal brief, consider having a colleague play “devil’s advocate.” Or complete this review yourself. This process can help identify additional arguments you may want to raise, but that you might not have previously considered. It should also help avoid the problem of raising a good issue only in reply. If new issues still come up, you may have to raise them in a separate motion.
4. Mention the Argument in Passing in Your Brief.
Another surefire way to get the appellate court on your opponent’s side is to fail to sufficiently develop the argument. Appellate courts “repeatedly warn litigants that unsupported issues adverted to in a perfunctory manner and without developed argumentation are deemed waived on appeal.”4 In other words, one-sentence arguments just don’t cut it. The same concept applies to failure to support arguments with legal authority or to provide citations to the record. Though word count or page limits restrict what arguments can be made, important arguments must be made and supported. Judges are busy and they don’t want to feel like you are wasting their time. Don’t make their job harder. Thoroughly present each argument, supported by legal authority and record citations.
Practice Tip: When reviewing your briefing, make sure each argument is supported by both a legal and factual analysis. If you go through the brief and see an argument that is lacking one or both of these elements, it is probably not sufficiently developed. Consider whether you can develop it sufficiently. If not, cut it out. Another tip—don’t put an argument in the footnotes. Nothing says to the judge, “I’m not sufficiently developing this” like a footnote argument. If it is important enough to be raised to the court at all, put it in the body of the argument.
5. Don’t Get a Ruling from the District Court.
Perhaps just as bad as not raising an issue at all is raising it and then abandoning it before trial. Sometimes, failure to secure a ruling on a motion can be read as abandoning an argument before the district court. When a party abandons an argument, it cannot be easily resurrected on appeal.
Practice Tip: Make a mental or physical list of all motions and other issues raised to the court. Use this list to make sure to secure a ruling on all motions. If the judge refuses to rule, at least make a record of that.
6. Raise the Argument in the Wrong Pleading.
In Colorado, an appellate court cannot review the denial of a motion for summary judgment following a trial on the merits.5 In order to preserve these issues for appellate review, they must be raised anew, for example, by making a motion for directed verdict or for judgment notwithstanding the verdict. It will not matter to the appellate court that the issue was raised and rejected by the district court during the summary judgment phase. In Colorado, the trial moots the summary judgment denial. So to avoid the appellate court ruling that the arguments were abandoned after summary judgment was denied, the issues must be renewed. The issue can also creep up when litigants try at the last minute to raise an issue for the first time in a post-trial motion. While these latch-ditch efforts may fly before some judges, the Tenth Circuit has stated that where a trial court explicitly notes that the issue was not timely raised, it is too little, too late.
Practice Tip: Be sure to renew any arguments at the proper time if they must be preserved. Also, don’t wait until the last minute to raise an issue. Communicate with the court regarding its preference at scheduling conferences.
7. Don’t Raise the Issue in the First Appeal.
What about a second appeal—say after a remand or a new trial. What issues should have been raised in the first appeal? For the most part, courts in this circuit agree that where an issue could have been raised in an appeal, but was not, it is most likely waived on remand. As the Tenth Circuit has noted, “The grant of remand on appeal does not reopen the order appealed from; instead, remand commences a new proceeding which will ultimately terminate in another final order. The first final order cannot be challenged in an appeal of the second final order.” While you must be judicious with arguments, you must still raise all the issues that matter.
Practice Tip: Consider what orders might become final if you win on certain grounds. If necessary, urge the appellate court to clarify the scope of remand or point out any sticky issues they may want to resolve within their discretion.
With all the ways arguments can be waived for appeal, keeping track of these issues while in the heat of trial may seem like a daunting task. For very important cases, consider engaging an appellate specialist as part of your trial team. This lawyer’s sole job will be to work through the trial with an eye toward appeal. This can also make preparing the appeal much more efficient.
1Goss v. Bd. of Cnty. Comm’rs, Nos. 14-5128, 15-5004 (10th Cir. Apr. 26, 2016).
2See Ron Peterson Firearms, LLC v. Jones, 760 F.3d 1147, 1164 n.16 (10th Cir. 2014) (citing United States ex rel. King v. Hillcrest Health Ctr., Inc., 264 F.3d 1271, 1279 (10th Cir. 2001)).
3See, e.g., Anderson v. United States Dept. of Labor, 422 F.3d 1155 (10th Cir. 2005) (“‘[A]ppellate courts will not entertain issues raised for the first time on appeal in an appellant’s reply brief.’” (quoting Headrick v. Rockwell Int’l Corp., 24 F.3d 1272, 1277-78 (10th Cir. 1994))).
4 Berget v. Gibson, 188 F.3d 518 (10th Cir. 1999).
5 See, e.g., Feiger, Collison & Killmer v. Jones, 929 P.2d 1244 (Colo. 1996).
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