Litigators and jurists alike frequently use the terms “waiver” and “forfeiture” interchangeably in federal appellate practice. However, these are distinct concepts, and a savvy litigator will carefully consider them when weighing the merits of a client’s potential appeal: Is it a likely exercise in futility or is the opposing party’s argument vulnerable to an exacting standard of review?
What is Forfeiture?
“Forfeiture,” as the term has been defined by the United States Supreme Court, is the “failure to make the timely assertion of a right.”[1] Forfeiture occurs when “the argument in question was not identified in any form or fashion” before the lower court.[2] Forfeited arguments are subjection to plain error review on appeal, which requires showing “(1) an error occurred (2) which was clear or obvious and which not only (3) affected the [appellant’s] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of the judicial proceedings.”[3] The standard is famously unfriendly, though not insurmountable. “In practice, the plain error doctrine allows an appellate court to correct egregious missteps but not the ‘ordinary backfires’ that are apt to occur during any trial.”[4]
What is Waiver?
By contrast, “waiver” is the “intentional relinquishment or abandonment of a known right.”[5] Waiver occurs when a party acknowledges a claim or right and chooses forgo an argument before the lower court.[6] While the distinction between the doctrines of waiver and forfeiture at the trial court level may be subtle, “[t]he difference is critical: a waived issue ordinarily cannot be resurrected on appeal.”[7]
Waiver is not only a risk before the district court, but also before the court of appeals. In appellate briefing, “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation,”[8] and “arguments made for the first time in an appellant’s reply brief [,] are generally deemed waived.”[9] Most courts of appeals hold fast to this principle. Thus, while it is distinct from a waiver before a lower court, attorneys should be cognizant of this second avenue for waiver when drafting or replying to an appellant’s principal brief on appeal.
Why this Distinction is Critical
Recognition of waived or forfeited arguments at the inception of federal appellate briefing is critical for appellants and appellees alike.
For an appellant in the regrettable position of finding that an argument central to their case was waived below, an appeal may be futile because the argument “ordinarily cannot be resurrected.”[10] If the argument can be fairly characterized as forfeited, however, the prudent course may be to offer a plain error analysis in the first instance, if only in the alternative to an argument that the issue was, in fact, not forfeited. Failure to accept that an argument may have been forfeited permits opposing counsel to have the first word on the plain error standard, requiring rebuttal in the reply brief, and the risk that the court of appeals will steer clear of the issue altogether.
Counsel for an appellee should be especially vigilant to raise issues of waiver and forfeiture when the opportunity arises. It is unreasonable to expect an appellate court will scour the lower court record on its own to ensure that each of the appellant’s arguments were properly preserved. In instances of waiver, an appellee can make short work of such an error by citing to where appellant appreciated—but chose not to make—the argument at issue.
If the record is devoid of any hint of the issue the appellant raises on appeal, the plain error standard of review for forfeited arguments provides a roadmap for a compelling opposition. To safeguard its success below, the appellee need only convince the court that (1) an error did not occur, (2) if an error did occur, it was not clear or obvious, (3) the error did not affect the appellant’s substantial rights, or (4) that the error did not “impair[] the fairness, integrity, or public reputation of the judicial proceedings.”[11] Moreover, if the appellant failed to acknowledge an issue of forfeiture in its principal brief, it is unlikely that it made any argument to satisfy the final three elements of the plain error standard. An astute appellee may argue that, in failing to grapple with the plain error standard in the principal brief, the appellant has waived the argument that the court below committed plain error.[12]
Ultimately, waiver and forfeiture are common argument, but knowing when to raise these issues and how to avoid their pitfalls may be the difference between success and failure on appeal.
[1] United States v. Olano, 507 U.S. 725, 733 (1993).
[2] Dávila v. Corporación De Puerto Rico Para La Difusión Pública, 498 F.3d 9, 14 n.2 (1st Cir. 2007).
[3] United States v. Duarte, 246 F.3d 56, 60 (1st Cir.2001).
[4] United States v. Padilla-Galarza, 990 F.3d 60, 74 (1st Cir. 2021) (quoting United States v. Griffin, 818 F.2d 97, 100 (1st Cir. 1987)).
[5] Olano, 507 U.S. at 733 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
[6] See Padilla-Galarza, 990 F.3d at 76.
[7] United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
[8] United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
[9] United States v. Fitzpatrick, 67 F.4th 497, 503 (1st Cir. 2023).
[10] Rodriguez, 311 F.3d at 437.
[11] Duarte, 246 F.3d at 60.
[12] Zannino, 895 F.2d at 17.
