Written by Emily A., OLN Freelance Attorney.
Appellate courts commonly use waiver to quickly dispatch with issues that appealing parties have not properly preserved. Most appellate courts require that issues be raised in a certain way or at a certain time before an appellate court will consider the issue. When a party fails to raise the issue properly, the party may have waived that issue. Responding parties should be aware of and utilize waiver.
Waiver can occur in a variety of circumstances. First, an appealing party can waive an issue if it fails to raise the issue in its opening brief. Raising an issue for the first time in a reply brief is generally not allowed. Sometimes a party can waive an issue if it inadequately briefs the issue, which means that the party provided little or no law or analysis of an issue.
Second, an appealing party can waive an issue if it fails to raise it in the lower court. Generally appellate courts will only address issues that have been raised and decided by the district court. Even if the appealing party raised the issue in the lower court, responding parties should examine whether the appealing party raised the issue in the context of the order or judgment that is being appealed. For example, if an appealing party is appealing a summary judgment decision and raises an argument that was only made in a motion to dismiss, that argument was probably not properly preserved for the appeal.
Third, the responding party should determine if there are any prerequisites to raising issues about trial procedure, evidentiary rulings, or jury instructions on appeal. Some states require that the appealing party first raise those issues in a motion for a new trial.
A waiver argument is an easy out for appellate judges—they can avoid a potentially sticky issue because the appealing party did not strictly follow the procedure required to preserve the issue. If you are responding to an appeal, consider contacting a freelance attorney at Overflow Legal Network to help you decide which issues have potentially been waived and to help you respond substantively to the other issues.