Avoiding Waiver: Appellate Briefs and Footnotes

A case recently before the United States Court of Appeals for the Seventh Circuit serves as a cautionary reminder for appellate attorneys that arguments must be raised in your appellate brief to be preserved. On September 25, 2024, the Seventh Circuit heard oral argument in Griffith Foods International Inc., et al v. National Union Fire Insurance Company of Pittsburg where insurer National Union argued it had no duty to defend its insured, Stergenics, in an underlying pollution litigation.

At oral argument National Union argued that a master complaint should not have been used to determine the duty to defend for the numerous lawsuits against it. Judge Scutter of the Seventh Circuit seemed shocked, however, that this question had only been raised in a single footnote in National Union’s brief.

“Write it on the front cover of the brief,” he stated, “It’s the biggest issue in the litigation and it’s not been preserved.”

The Seventh Circuit is not an outlier in this regard. Appellate Courts across the country are not generous when it comes to preservation of arguments that are buried in footnotes—including the Pennsylvania Superior Court and The Third Circuit.

The general rule in Pennsylvania is that issues not raised in the lower court are waived and cannot be raised for the first time on appeal. (Pa.R.Civ.P. 302).

The corollary to this principal is that issues must also be raised and preserved for appellate review. Many rules of appellate procedure effectuate this principle, including Pennsylvania Rule of Appellate Procedure 2119. PA Courts have consistently affirmed that they will dismiss or disregard arguments in appellate briefs that are not developed by citation to pertinent authority pursuant to Pa.R.A.P. 2119. See, e.g., Com. v. Knox, 50 A.3d 732, 748 (Pa. Super. 2012).

Because of this rule (and similar federal rules) appellate courts in Pennsylvania have historically found arguments solely raised in a footnote to be waived/forfeited. For example, in Moses Taylor Hosp. v. White, 799 A.2d 802 (Pa. Super. 2002), an appellant attempted to incorporate by reference a prior memorandum of law found on the record by footnote and the PA Superior Court deemed the entire argument waived. See also Papp v. Fore-Kast Sales Co., 842 F.3d 805 (3d Cir. 2016) (timeliness argument incorporated by reference raised in footnote forfeited).

Likewise, in Pennsylvania AFL-CIO ex rel. George v. Com., when an appellant asserted an additional basis to why the Commonwealth Court had erred in sustaining the appellees’ preliminary objections to their claims in a footnote to their brief, the Pennsylvania Supreme Court stated that, “Such a cursory assertion, merely made in passing in a footnote, serves to waive these claims.” See also John Wyeth & Bro. Ltd. v. CIGNA Intern. Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) (arguments raised in passing, such as in a footnote, are considered waived).

While it may be tempting to reference or summarize a point in a footnote for the sake of space or time, certainly this caselaw provides a warning to appellate lawyers that all legal arguments and analysis should be placed in the body of the argument section of your appellate brief, or you run the risk of waiver. 

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.