May 30, 2018 Top Story

Appellate Review Allowed Despite Failure to Preserve Issue Below

Appellate court charitably distinguishes inadvertent forfeiture from intentional waiver

C. Thea Pitzen

Few would think the topic suitable for most cocktail parties, but lawyers' watercooler chatter should include a federal appeals court decision that explores the difference between waiver and forfeiture.

The U.S. Court of Appeals for the Third Circuit reviewed a question of law, although the appellant failed to preserve the issue. The court held the appellant forfeited the issue rather than waived it. ABA Section of Litigation leaders caution that practitioners at both the trial and appellate court levels should learn this distinction.

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