Having lost in the trial court, counsel’s focus must turn to the appeal, and more importantly, the strategy on what issues to raise. Recent developments in the U.S. Court of Appeals for the Third Circuit related to waiver of arguments now should play a central role in that calculus both before and after a notice of appeal is filed. Those developments may be traps for the unwary, and underscore the importance of preservation of both issues and arguments in anticipation of a potential appeal. Avoiding the potential issue preservation traps requires communication between inside and outside counsel to ensure that the client and trial counsel are on the same page about what issues and supporting legal arguments are—and need—to be made.

Keeping this subtle—but critical—distinction between broad issues and the narrower arguments in support of those issues center stage can mean the difference between a successful appellate challenge to an unfavorable district court ruling and some heart-rending moments upon reading those dreaded words in an opposition brief or—even worse—the appellate court’s opinion: “this argument was not preserved below and has been waived.”

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