Preservation Rules in the Federal Courts of Appeals
Journal of Appellate Practice and Process, 2016 Forthcoming
23 Pages Posted: 25 Feb 2015
Date Written: February 1, 2015
Preservation rules are a key component of every advocate’s toolkit, both at trial and on appeal. This article surveys preservation rules in the federal appellate courts, focusing in particular on the Tenth Circuit. We examine the related doctrines of waiver, forfeiture, and plain error; the legal contexts in which these doctrines have unique application; and the relationship of preservation rules to appellate briefing. This article has a twofold purpose. First, it brings together the disparate rules governing preservation to provide practical assistance to both trial and appellate advocates. Second, it examines the deeper, policy considerations at play when preservation rules are implicated. Advocates must know the reasons behind the rules, and the competing values they serve, to craft effective preservation arguments.
Keywords: appeals, appellate, preservation, plain error, waiver, forfeiture, litigation, process, practice
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