Appellate Practice
Nov. 17, 2025
Appellate gotchas: Part 2
Appellate 'gotchas' -- rules barring new arguments at oral argument -- should be used sparingly, because denying counsel the chance to raise valid, unbriefed issues can impede justice and unfairly disadvantage parties.
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.
In my last
column I discussed appellate "gotchas" -- when some appellate judge says to
a lawyer "You can't argue that!" -- even when you're right.
I opined that gotchas should not be employed unless the injustice inflicted on a party by refusing to consider the argument is...
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