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.
To be clear, I’m not saying “only appellate lawyers can avoid waiver” or “waiver is never a problem for appellate lawyers.” Waiver is sneaky. Really sneaky. Even the best lawyers (including the best appellate lawyers) will occasionally get stung by a sneaky waiver problem.
But appellate lawyers are, by design, specially attuned to waiver problems—because waiver is always a threat to every issue on appeal. So, if you want to avoid waiver problems—and you do, you really, really do—you should consider hiring an appellate lawyer. And not just for the appeal. You should consider hiring an appellate lawyer way, way, way before the appeal. You’ll see what I mean, if you keep reading.
First, of the cases I found from 2016, in the Dallas Court of Appeals, four involved waiver through inadequate briefing. That is, the appellant wanted to challenge an error, but the appellant’s brief did not adequately address the issue, so the court of appeals dismissed the challenge as waived. See Golfis v. Houllion, 2016 WL 6236842, at *4 (failure to provide record citations or substantive analysis in challenging evidentiary rulings); Ponderosa Pine Energy, LLC v. Illinova Generating Co., 2016 WL3902559, at *10 (failure to cite legal authority in challenging judgment of joint-and-several liability); Wise v. Mitchell, 2016 WL 3398447, at *6 (failure to cite legal authority or provide substantive analysis in challenging validity of power-of-attorney); Chambers v. Allstate Ins. Co., 2016 WL 3208710, at *9 (failure to provide argument or authority for public-policy issue).
The cases described above involved appellate waiver, meaning the issue was (presumably) preserved in the trial court for a challenge in the court of appeals, but then the ball was dropped in the court of appeals. Obviously, these cases serve as examples of why you want a good appellate lawyer for the actual appeal, to make sure every issue is adequately briefed, etc.
But much more frequently, the ball gets dropped in the trial court, resulting in waiver of the issue long before you ever get to the court of appeals. This is why you should consider hiring an appellate lawyer long before it’s time to appeal.
Consider the following cases (again, from just one year, in just one appellate court).
How early can the waiver problems start? Well, as early as when you file your complaint, or your answer to the plaintiff’s complaint. Seriously. In one case from last year, two companies got into a dispute over a contract and one sued the other. The defendant lost, and on appeal it argued that the plaintiff was never a party to the contract in the first place—so the judgment in the plaintiff’s favor, based on the contract, should be reversed. But under Texas procedural rules (Rule 93), a challenge to a plaintiff’s capacity to sue (which is what this is) must be made in the defendant’s initial answer to the suit, in a “verified” denial (by affidavit) of the plaintiff’s capacity to sue. Here, the defendant had never done that—so the case went to trial, the defendant lost, and this issue was waived long before the parties ever got to the appeal. E.F. Johnson Co. v. Infinity Global Tech., 2016 WL 4254496, at *5-6.
(I’ll just throw in another quick example of waiver problems that can arise at the very start of a lawsuit: In Texas, to recover attorney’s fees in a breach-of-contract case, the plaintiff suing for breach must first present its claim to the defendant, 30 days before filing suit—to give the defendant a chance to avoid the possibility of having to pay the plaintiff’s attorney’s fees in a lawsuit. If the plaintiff doesn’t satisfy this “presentment” requirement, the plaintiff cannot recover fees—even if the plaintiff wins on its breach-of-contract claim. This creates a potential waiver problem for both sides: plaintiffs need to be sure to satisfy the presentment requirement before they file suit, or they waive their right to fees; and if the plaintiff fails to satisfy the presentment requirement, the defendant, in its answer to the complaint, must be sure to specifically deny that the presentment requirement was satisfied—or the defendant waives this issue and the plaintiff will still be entitled to recover fees! See Shin-Con Development Corp. v. IP Investments, Ltd., 270 S.W.3d 759, 768 (Tex. App.—Dallas 2008).)
In one case, waiver problems arose from start to finish. The appellant waived its right to arbitrate the dispute by failing to assert it until the eve of trial; waived its right to complain about the enforcement of a late-fee provision, by failing to raise the issue at any time before or during trial; and waived its right to complain about the trial court’s failure to enter factual findings in support of the judgment, by failing to request them after the judgment. High Rev Power, LLC v. Freeport Logistics, Inc., 2016 WL 6462392.
In two cases, the defendant failed to plead judicial estoppel as an affirmative defense, at the start of the case, and thereby waived that argument on appeal. See Koch v. Boxicon, LLC, 2016 WL 1254048, at *7-8; Tempay, Inc. v. Tanintco, Inc., 2016 WL 192596, at *7.
And in three cases, the problem was an error in the jury charge that the appellant failed to adequately preserve in the trial court. (We call it the “jury charge” in Texas, but you might know it as the “verdict form” or as something else, in other jurisdictions.) See Shamoun & Norman, LLP v. Hill, 483 S.W.3d 767, 789-790, 792-793; Dao v. Garcia, 486 S.W.3d 618, 627; Fitzerman v. Classic Americana, LLC, 2016 WL 1450165, at *10.
One of these cases (Hill) was among the “commercial” cases I pulled in my original (narrow) search. I came across the other two among the “civil” cases decided last year, when I took a cursory look at waiver problems relating to the jury charge. My search here was nowhere near exhaustive, and I would bet—in the broader class of “civil” cases—there were many more involving waiver of charge error. I recently attended a CLE presentation where a panel of three judges from the Dallas Court of Appeals seemed to agree that “charge error” (errors in the jury charge or verdict form) is the most common error they see—and the most common error that is waived by a failure to adequately preserve it at the trial court.
So consider these examples. Consider that they are taken from a very small sample of cases decided just last year. And, if nothing else, consider hiring an appellate lawyer—not just on appeal but also while you’re still at the trial court, even if only to handle the jury charge.
UPDATE: Here’s another good post on waiver issues in Texas courts.