'Exacting' Standard for Litigants Seeking to Avoid Waiver

October 15, 2013
When a litigant wants to raise an argument on appeal, the litigant must have made that argument before the trial court, i.e., "preserved" the argument, or else the appellate court will deem the argument waived. The appellate court will generally ignore any waived argument absent certain extraordinary circumstances or if the argument is nonwaivable, e.g., subject-matter jurisdiction. Thus, it is essential that litigants properly raise arguments in the trial court to avoid waiving them on appeal.

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