The Difference Between Waiver and Forfeiture Is Critical

In an article on the AP&S Law blog, attorney Colten H. Erickson has highlighted an important point for parties involved in federal litigation: that the terms “waiver” and “forfeiture” are often used interchangeably by attorneys and judges, but they do not mean the same thing. 

A litigator must understand the distinction between the two when considering a possible appeal. This can be the difference between making a convincing argument that may still be subject to a strict standard of review and wasting time and resources on a futile effort.

According to the Supreme Court, “forfeiture” is when a right wasn’t asserted or identified in any way before a lower court. Forfeited arguments are subject to plain error review on appeal. The standards are high, but not insurmountable.

“Waiver” is a different kettle of fish. It occurs when a party acknowledges a claim or right and chooses not to argue it before the lower court. A waived issue can rarely be raised on the appeals level.

Litigants should be watching for arguments made for the first time in an appellant’s reply brief. An appellant that discovers its central argument was waived in lower court is out of luck. If there is a case that the argument was forfeited, the author suggests that it may be prudent to try a plain error analysis, “if only in the alternative to an argument that the issue was, in fact, not forfeited.”

Respondents need to be hyper-aware of issues of waiver and forfeiture. An appeals court is unlikely to study the lower court record on its own initiative to make sure that all the appellant’s arguments were preserved. Respondents can capitalize on a preservation error by citing where the appellant acknowledged the argument at issue but chose not to make it.