Appeals can often be lost on what is not in an appeal—the winning argument missed, forgotten, or intentionally excluded from the initial brief. As legal teams make final strategic and editing decisions on their initial brief, it helps to remember the impact of failure to raise an argument. This article provides a brief recap of Florida law on waiver of appellate argument. If you have any questions on an appeal, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.

Florida law requires that an argument for reversal be specifically preserved in the trial court and then be specifically raised and briefed to the appellate court, in order for that appellate court to consider it. D.H. v. Adept Cmty., Servs., Inc., 271 So. 3d 870, 888 (Fla. 2018). Any arguments not expressly included in an appellate brief are waived. Id.

As the Florida Supreme Court recently discussed, “this requirement of specific argument and briefing is one of the most important concepts of the appellate process.” Id. (“it is not the role of the appellate court to act as standby counsel for the parties.”). 

Thus, an appellate court is “not at liberty to address issues that were not raised by the parties.” Anheuser-Busch Co., Inc. v. Staples, 125 So. 3d 309, 312 (Fla. 1st DCA 2013); Sarmiento v. State, 371 So. 2d 1047, 1053 (Fla. 3d DCA 1979). Nor may an appellate court “depart from its dispassionate role and become an advocate by second guessing counsel and advancing for him [or her] theories and defenses which counsel either intentionally or unintentionally has chosen not to mention.” Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So. 2d 958, 960 (Fla. 4th DCA 1983).

Thus, where an appellate brief fails to raise an issue, that issue is thereafter precluded from appellate consideration. Good things to keep in mind during final edits. If you have any questions on an appeal, please contact Bernhard Law Firm at www.bernhardlawfirm.com, abernhard@bernhardlawfirm.com, 786-871-3349.