Waiver is an important concept to any appellate attorney because it determines what can and cannot be raised on appeal. Generally, an appellate court will only consider arguments that were previously raised in the trial court.
In United States v. Joseph, No. 12-3808, ---F.3d----, 2013 U.S. App. LEXIS 19315 (3d Cir. Sept. 19, 2013), the Third Circuit explained the degree of particularity required for a party to preserve an argument on appeal in the context of a motion to suppress evidence. In a precedential opinion authored by Judge D. Brooks Smith and joined by Judges Marjorie Rendell and Patty Schwartz, the Court explained that there is an important distinction between raising an argument and raising an issue. For parties to preserve an argument for appeal, they must have raised the same argument in the district court; simply raising a broader issue that encompasses the appellate argument is insufficient.
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