The Distinction Between Waiver and Forfeiture of Issues for Appeal - The Writ

Appellate practice begins in the district court. That is where you make your record on appeal and preserve issues so that the judgment can be adequately reviewed by the appellate court. Whether through objections, motions in limine, or offers of proof, what occurs below determines what can be argued on appeal.

Numerous decisions of the Nevada Supreme Court hold that failure to raise an issue in the district court bars a litigant from raising it on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981); see also Powers v. Powers, 105 Nev. 514, 516, 779 P.2d 91, 92 (1989) (holding that “[a] party may not raise a new theory for the first time on appeal, which is inconsistent with or different from the one raised below”). The appellate court generally will not consider an argument that is first raised on appeal. Peke Res., Inc. v. Dist. Ct., 113 Nev. 1062, 1068 n.5, 944 P.2d 843, 848 n.5 (1997).

There are certain exceptions to this rule. For example, a party can raise a jurisdictional defect at any time, even if it not first presented to the trial court. Castillo v. United Fed. Credit Union, 134 Nev. Adv. Op. 3, 409 P.3d 54, 57 n.2 (2018). Also, a constitutional issue may be considered on appeal, even if not preserved below. Carroll v. State, 132 Nev. Adv. Op. 23, 371 P.3d 1023, 1030 (2016). But unpreserved issues are reviewed for plain error, whether or not they are of constitutional dimension. Martinorellan v. State, 131 Nev. Adv. Op. 6, 343 P.3d 590, 593 (2015). Even an error that is plain from a review of the record does not require reversal unless it affected the defendant’s “substantial rights” through “actual prejudice or a miscarriage of justice.” Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (internal quotations omitted).

Importantly, in the context of issue preservation, courts distinguish between “waiver” and “forfeiture.” Which label applies depends on the litigant’s conduct in the district court. Waiver is the intentional relinquishment of a known right and will not give rise to appellate review of an unpreserved issue. For example, a strategic decision to not raise an objection amounts to waiver and is not reviewable even for plain error. Thomas v. Hardwick, 126 Nev. 142, 157, 231 P.3d 1111, 1121 (2010).

Forfeiture, on the other hand, tends to involve inadvertence or oversight. Yet Nevada law has not always clearly delineated between waiver and forfeiture. See Old Aztec Mine, 97 Nev. at 52, 623 P.2d at 984 (finding a waiver where “the appellant neglected to raise the issue” below). Where the litigant’s conduct in the district court could reasonably be construed as intentional, the appellate court is unlikely to review the error. Jeremias v. State, 134 Nev. Adv. Op. 8, 412 P.3d 43, 49 (2018). Importantly, even if the failure to preserve an objection was inadvertent, the appellate court’s decision whether to correct a forfeited error is discretionary and, in doing so, the court will likely weigh various policy implications. See id.

Generally, an appellate court will be more inclined to find a forfeiture in criminal cases where important rights are at stake. However, a recent federal decision from the Third Circuit Court of Appeals considered a qualified immunity defense in a civil rights case that was not advanced in the district court or in the opening brief on appeal after the court found that the failure was unintentional. See Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 148 (3d Cir. 2017); see also Thomas, 126 Nev. at 157, 231 P.3d at 1121 (noting distinction between waiver and forfeiture in wrongful death case).

What does all of this mean for practitioners? The forfeiture doctrine can help salvage on appeal points that, through inadvertence or neglect, were not pressed below. But the bar for getting the appellate court to review a forfeited issue is a high one. On the other hand, a strategic decision to emphasize some arguments over others or to forego an objection entirely will result in a finding of waiver, for which no appellate review is available. The bottom line is that your actions in the district court will have important implications on appeal.