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.

     Laches is "'a defense developed by courts of equity' to protect defendants against 'unreasonable, prejudicial delay in commencing suit.'" SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017) (quoting Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967, 1973 (2014)). It is a familiar statement of the law that laches generally does not apply when the statute of limitations applicable to a legal claim has not run. But many state courts continue to indicate that, in some circumstances, "laches may bar a legal claim even if the statutory period of limitations has not yet expired." Tenneco Inc. v. Amerisure Mut. Ins. Co., 281 Mich. App. 429, 456-57, 761 N.W.2d 846, 863-64 (2008); see also Veysey v. Nelson, 2017 UT App 77, ¶ 7, 397 P.3d 846, 848 ("[B]ecause laches may apply in situations where the statute of limitations has not yet run, the existence of a statute of limitations does not … automatically preclude application of the laches doctrine."), cert. denied, 400 P.3d 1046 (Utah 2017); Bldg. & Constr. Trades Council of N. Nev. v. State ex rel. Pub. Works Bd., 108 Nev. 605, 611, 836 P.2d 633, 637 (1992) ("Especially strong circumstances must exist . . . to sustain a defense of laches when the statute of limitations has not run.").  However, that no longer appears to be the case in federal court, at least with respect to a federal claim as to which Congress has expressly supplied a statute of limitations.

            In Petrella, the U.S. Supreme Court held that laches cannot defeat a damages claim brought within the three-year period prescribed by the Copyright Act's statute of limitations. 134 S. Ct. at 1972-75 (applying 17 U.S.C. § 507(b) (requiring a copyright holder claiming infringement to file suit "within three years after the claim accrued")); see also SCA Hygiene, 137 S. Ct. at 961 ("We saw in this language a congressional judgment that a claim filed within three years of accrual cannot be dismissed on timeliness grounds."). In so holding, the Court spoke in very broad terms: "[I]n the face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief." Petrella, 134 S. Ct. at 1974. Petrella's holding rested on both separation-of-powers principles and the traditional role of laches in equity. Since

Steve Friedman, Senior Attorney, National Legal Research Group

     "Without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." 36 C.J.S. Federal Courts § 31 (Westlaw database updated Sept. 2016). "Personal jurisdiction usually is obtained over a defendant by service of process." Id. Thus, untimely or ineffective service of process can stop a case dead in its tracks. The means of serving process is typically set forth by statute or court rule, the terms of which are often strictly construed. Below are two cautionary tales to illustrate the point.

     In New York, service of process is governed by Rule 2013 of the Civil Practice Law and Rules ("C.P.L.R."). Typically, service can be accomplished "by mailing the  paper to . . . the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address." The statute further notes that "service by mail shall be complete upon mailing." C.P.L.R. 2013(b)(2) (service upon attorneys); accord C.P.L.R. 2013(c) (incorporating C.P.L.R. 2013(b)(2) for service upon a party).

Lee Dunham, Senior Attorney, National Legal Research Group

      Model Rules of Professional Conduct Rule 3.7 contains the well-known prohibition on lawyer testimony known as the "Lawyer as Witness Rule" or the "Attorney Testimony Rule." It provides:

Ann. Model Rules of Prof'l Conduct R. 3.7 ("Lawyer as Witness").

Paul Ferrer, Senior Attorney, National Legal Research Group

     For many years, trial attorneys were familiar with the broad scope of discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provided that unless otherwise limited by court order, parties could "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." As indicated in Rule 26(b)(1), the scope of discovery could be limited by the entry of a protective order if the court determined, among other things, that "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii) (amended), quoted in EEOC v. Thompson Contracting, Grading, Paving & Utils., Inc., 499 F. App'x 275, 281 n.5 (4th Cir. 2012). As part of the "Duke Rules" package of amendments to the Federal Rules of Civil Procedure, which took effect on December 1, 2015, that language was moved out of Rule 26(b)(2)(C)(iii) and into Rule 26(b)(1), which now provides that

[u]nless otherwise limited by court order, [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.