Appellate Practice
Mar. 18, 2024
'Forfeitures' on Appeal Part 2: Ensuring fairness to the parties
The appellate court’s job is to apply the correct law and provide justice for the parties, regardless of the lawyers’ mistakes or arguments. Trial attorneys should consult with appellate counsel to avoid making mistakes or missing important arguments.
Myron Moskovitz
Legal Director
Moskovitz Appellate Team
90 Crocker Ave
Piedmont , CA 94611-3823
Phone: (510) 384-0354
Email: myronmoskovitz@gmail.com
UC Berkeley SOL Boalt Hal
Myron Moskovitz is author of Strategies On Appeal (CEB, 2021; digital: ceb.com; print: https://store.ceb.com/strategies-on-appeal-2) and Winning An Appeal (5th ed., Carolina Academic Press). He is Director of Moskovitz Appellate Team, a group of former appellate judges and appellate research attorneys who handle and consult on appeals and writs. See MoskovitzAppellateTeam.com. The Daily Journal designated Moskovitz Appellate Team as one of California's top boutique law firms. Myron can be contacted at myronmoskovitz@gmail.com or (510) 384-0354. Prior "Moskovitz On Appeal" columns can be found at http://moskovitzappellateteam.com/blog.
It’s the bane of every appellate lawyer – like me. I think of a brilliant argument, only to be met with: “Sorry, counsel. That argument was not made to the trial court. So now it’s forfeited.”
My last column began this discussion. This column completes it.
While a few appellate Justices simply incant this basic rule, most understand that the rule is more nuanced because it is based on the need for “fairness” to...
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