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Devin Misour, Reed Smith

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.

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