Trial attorneys handling an appeal of a matter that they litigated in the trial court, and trial attorneys who handle appeals only occasionally, often repeat on appeal the same arguments they made in the trial court. But this is not required, and repetition is not always the best appellate strategy, particularly when the arguments made below were weak or otherwise unavailing. In certain cases, success on appeal demands that the appellate attorney advance a “new” or additional argument in support of the claim on appeal. This raises the issue of whether, and to what extent, “new” arguments are permitted on appeal.
Preservation is a well-recognized prerequisite to appeal. For an issue to be reviewable on appeal, you must preserve it in the trial court, barring certain extraordinary situations such as manifest injustice or a jurisdictional issue. See Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 302 (2d Cir. 1996). Therefore, if you did not raise the issue, it is deemed waived on appeal. But the general preservation rule applies only to the claims of the appellant, and not necessarily to arguments of either the appellant or the appellee. See Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 378–79 (1995) (the Supreme Court explained that the appellant’s argument was “not a new claim within the meaning of that rule, but a new argument to support what has been his consistent claim”) (emphasis added). See also United States v. Guzman-Padilla, 2009 U.S. App. LEXIS 16298, at n.1 (9th Cir. 2009). This key distinction between claims and arguments often is overlooked. And it is this distinction that may separate effective appellate advocacy from merely preserving a record for review.