Academic journal article Journal of Appellate Practice and Process

Preservation Rules in the Federal Courts of Appeals

Academic journal article Journal of Appellate Practice and Process

Preservation Rules in the Federal Courts of Appeals

Article excerpt


Litigation is a long journey, and legal arguments are perishable goods. Before beginning the journey, attorneys must consider not only which arguments to take with them, but also how to preserve those arguments for both trial and appeal. Appellate courts, particularly the federal courts of appeals, have developed a sophisticated, often complex, and sometimes conflicting set of preservation rules. These are part of the "winnowing process" of litigation, the "machinery by which courts narrow what remains to be decided." (1)

Preservation rules are a key component of every advocate's toolkit. Trial counsel must know them. Appellate attorneys must use them. But the rules can also be a trap for the unwary. Sometimes, the argument that might have won on appeal wasn't timely or adequately raised at trial, and it doesn't survive the journey.

This article surveys preservation rules in the federal courts of appeals, focusing in particular on the Tenth Circuit, which has addressed in detail some of the more peculiar iterations of preservation principles. We begin by providing some brief background on preservation, then delve into the related doctrines of waiver, forfeiture, and plain error. We next explore legal contexts in which these doctrines either do not apply or have unique application, such as subject-matter jurisdiction, sovereign immunity, and objections to evidence. Finally, we examine preservation rules in the context of appellate briefing.

This survey is designed to assist both trial and appellate counsel as they navigate the federal courts' preservation rules. As important as the rules are, it's critical to remember the reasons behind them. Requiring parties to timely and adequately raise the arguments they want the court to address vindicates both structural and prudential values and ensures basic fairness to all parties. Balanced against these objectives is the court's "insistence that obvious injustice be promptly redressed." (2) Each of these considerations is in play when preservation is at issue. Appellate counsel therefore has a unique opportunity: to argue not only for application of a particular preservation rule, but to explain to the court why, in a particular case, that rule serves the interests it is designed to serve.


Any discussion of preservation rules must begin with the nature of our adversarial system. Courts depend on the parties, as self-interested litigants, to raise the issues they want the court to rule on. Courts typically do not decide, or even discuss, issues that the parties have not raised. As the Supreme Court recently put it, "[t]he premise of our adversarial system is that ... courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them." (3)

The first place in which parties must raise their arguments is the district court. As a general rule, an argument not first presented to the district court is not a proper basis for appeal. (4) As the Tenth Circuit has explained,

   [i]n order to preserve the integrity of the appellate structure,
   we should not be considered a "second-shot" forum, a
   forum where secondary, back-up theories may be mounted
   for the first time.... Parties must be encouraged to "give it
   everything they've got" at the trial level. (5)

To properly preserve an issue, a party must do more than simply raise it. She must both "aler[t] the district court to the issue and see[k] a ruling." (6) Arguments asserted but never pursued are not a basis for appeal. (7) Neither are "vague and ambiguous" arguments or "fleeting contention[s]" made in the district court. (8)

Sometimes, a party advances one argument to the district court and a different but related argument on appeal. Typically, this won't do. For example, in Ecclesiastes 9:10-11-12, Inc. …

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