When a litigant wants to raise an argument on appeal, the litigant must have made that argument before the trial court, i.e., “preserved” the argument, or else the appellate court will deem the argument waived. The appellate court will generally ignore any waived argument absent certain extraordinary circumstances or if the argument is nonwaivable, e.g., subject-matter jurisdiction. Thus, it is essential that litigants properly raise arguments in the trial court to avoid waiving them on appeal.
In a recent decision, United States v. Joseph, No. 12-3808 (Sept. 19, 2013), the U.S. Court of Appeals for the Third Circuit held that the degree of particularity required to preserve an argument is “exacting.” Thus, it is not enough for the appellant to have raised a general issue before the trial court; the appellant must have raised the “same argument” below. Although Joseph was a criminal case, the court’s reasoning and conclusions likely will be applied across the entire spectrum of civil and criminal cases in the Third Circuit. Thus, it is essential that all trial lawyers within the Third Circuit understand and apply its teachings.
