Photo by Shutterstock.com Walking the Line: When New Arguments Can Be Raised on Appeal
While appellate counsel generally may not stray far from the arguments that were advanced below, there may be a lane for a new argument if it can be pitched in a way that fits within an exception to that general rule.
August 21, 2020 at 03:05 PM
8 minute read
It's a situation most appellate counsel have faced: a client lost in the lower court, and there is a powerful argument for reversal that was not raised below. This is a problem, because appellate courts generally will not reverse based on an argument that was not presented in the lower court. And with good reason: Lower courts adjudicate issues in the first instance, and should be reversed only when they make a mistake in assessing what is presented to them. If the lower court was not given the chance to pass on the argument, it is hard to claim that it made a mistake.
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