Charlene Hicks—Senior Attorney, National Legal Research Group
One potentially overused legal principle that is often recited in appellate cases is that a party waives any issues or legal theories that he or she fails to assert at the trial court level. In other words, a party generally cannot raise a new issue for the first time on appeal. Any attempt to do so will likely be rejected by the appellate court.
Even so, an appellate attorney would do well to keep in mind that this oft-repeated principle does not apply to certain situations, including questions pertaining to the standard of review employed by the lower court. The proper standard of review that is applicable to a particular legal issue is a nonwaivable matter. See Winfield v. Dorethy, 871 F.3d 555, 560 (7th Cir. 2017), cert. denied, 138 S. Ct. 2003 (2018); Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009). Accordingly, an appellant does not forfeit a claim that the lower court failed to employ the proper standard of review “by failing to argue it” to the lower court. Sierra Club v. U.S. Dep't of Interior, 899 F.3d 260, 286 (4th Cir. 2018); see also United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011). Similarly, the parties to a case cannot agree on or assign an incorrect legal standard of review to an issue. Sierra Club, 899 F.3d at 286.
Thus, in reviewing a lower court’s ruling, the appellate court must first assure itself that the lower court discerned and applied the proper legal standard. Id. If the lower court failed to apply the proper standard of review to an issue on appeal, the appellate court must correct the lower court’s error and apply the correct legal standard. This is true regardless of whether a party argued for the application of that standard at the lower court level. Id.This principle may function as a type of appellate relief to an appellant who made tactical errors or overlooked potential issues or arguments at the trial level. In effect, by showing the appellate court that the parties and/or the lower court erred in assessing the case under a particular standard of review, the appellant may succeed in obtaining relief from the appellate court that seemed unattainable at trial.