Waiver Problems (or Why You Should Hire an Appellate Lawyer)

I did a quick search. In 2016 (just one year, Jan. 1 through Dec. 31), in the Dallas Court of Appeals (just one of the appellate courts in Texas), in what Westlaw identifies as “commercial” cases (just one narrow area of the law), there were at least nine appeals in which waiver was a problem. To me, that seems like a lot—because “commercial” cases typically involve high-dollar claims and high-caliber lawyers on both sides. And if we broaden our scope a bit, there were another 149 “civil” cases that popped up in my search for “waiver”—and many of those likely involved actual waiver problems, too. These waiver problems demonstrate why litigants should consider hiring an appellate lawyer.

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Circuit Splits

path-18197_960_720There’s a split over whether IDEA fee shifting should have a long or short statute of limitations. See here at 5 n.2.

There’s a split over whether reckless offenses are predicate offenses under 18 U.S.C. § 924(e). See here at 14 n.10.

Apparently, circuits disagree about how to interpret “directly and independently of all other causes.” See here at 2.

There’s a split over “a narrow exception to Rooker-Feldman.” See here at p.5.

There’s a split over the immediate appealability of Parker immunity claims. See here at p.17 n.6.

Circuits disagree about whether a party that fails to challenge a special verdict in the district court can raise the issue on appeal. See here at p.17 n.3.

And there’s a split over what “new evidence” means under Schlup. See here at p.3 n.1.