Burr & Forman

02.14.2017   |   Articles / Publications

Appellate Issues: “The Pain of Waiver”

Birmingham-based Partner, Devin C. Dolive, published an article for the Council of Appellate Lawyers’ 2017 Winter Edition of Appellate Issues. The article is titled “The Pain of Waiver.”

Justice Frankfurter once remarked: “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”1 Nevertheless, wisdom that arrives late can create problems for the appellate attorney. A client might not engage the appellate attorney until after trial counsel has already developed the record in the court below and the record is closed. Or the appellate attorney might herself file the notice of appeal and submit the appellant’s opening brief, and only then realize, on reply, that she should have raised some other issue or argument. Any number of scenarios can leave the appellate attorney wishing she had a time machine. This year’s AJEI Summit in Philadelphia may not have given attending appellate attorneys the key to the Tardis or some other time-travel device, but it provided the next best thing, in the form of a panel discussion entitled, “The Pain of Waiver: Everything You Ever Wanted to Know About Waiver but Were Afraid to Ask.”

To read the Council of Appellate Lawyers’ Winter 2017 Edition of Appellate Issues, click here.

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