In the wake of a trial, where tensions and emotions are running high and there is much work to be done, how does trial counsel ensure that key arguments are preserved for appeal? Perhaps more importantly, how much grace and latitude will an appellate court extend in the face of arguments on appeal that differ, whether in form or substance, from those arguments made in the trial court?
A recent Third Circuit decision, Spireas v. Commissioner of Internal Revenue, No. 17-1084, 2018 WL 1463506 (3d Cir. Mar. 26, 2018), sheds light on this issue and underscores the significance of keeping a close watch on potential appellate issues throughout the course of a trial to avoid the risk of losing them altogether.
The Third Circuit’s “Identical Argument” Standard
Broadly speaking, Third Circuit precedent regarding proper fodder for appellate review reflects that the court takes a somewhat stringent approach. Specifically, the Third Circuit adheres to the commonly accepted notion that “failure to raise an issue in the district court constitutes a waiver of the argument.” Belitskus v. Pizzingrilli, 343 F.3d 632, 645 (3d Cir. 2003). Thus, in order to preserve any argument for appeal, a party “must unequivocally put its position before the trial court at a point and in a manner that permits the court to consider its merits.” Shell Petroleum, Inc. v. United States, 182 F.3d 212, 218 (3d Cir. 1999). But the Third Circuit has gone even further: it has said that the “degree of particularity” with which an argument is raised in the trial court is determinative, and parties must make such arguments with “exacting specificity.” United States v. Joseph, 730 F.3d 336, 339, 341 (3d Cir. 2013). In other words, the arguments must be essentially “identical.” Id. at 342 (there are “at least two characteristics that identical arguments always have . . . [f]irst, they depend on the same legal rule or standard . . . [s]econd, the arguments depend on the same facts”).
Despite this, however, the Third Circuit has also recognized that “while parties may not raise new arguments, they may place greater emphasis on an argument or more fully explain an argument on appeal” and may even “reframe their argument within the bounds of reason”. Gen. Refractories Co. v. First State Ins. Co., 855 F.3d 152, 162 (3d Cir. 2017) (internal citations and quotations omitted).
Spireas v. Commissioner of Internal Revenue
It is against this legal background that the Third Circuit reviewed Spireas. In that case, appellant Spireas, an inventor, took an appeal from the Tax Court when it was determined that he improperly...
