More Than a Footnote: What the Fourth Circuit Expects From Trial and Appellate Lawyers
By One of the hallmarks of skilled appellate advocacy is knowing when an argument is properly preserved. Whether you’re on the offensive or defensive side of an appeal, identifying preserved (and unpreserved) issues can make or break your case.
Because the Fourth Circuit issues relatively few precedential opinions, it can be tough to find clear, reliable guidance on how to preserve issues for appeal. This article highlights three recurring preservation pitfalls, outlines the rules that apply, and offers practical suggestions for staying out of trouble when waiver or forfeiture becomes a concern.
1. Motions in limine can preserve issues — but not always.
Trial lawyers frequently rely on motions in limine to streamline evidentiary rulings and keep trials running smoothly. But beware: in the Fourth Circuit, simply filing a motion in limine doesn’t automatically preserve the issue for appeal.
Take United States v. Williams, 81 F.3d 1321 (4th Cir. 1996). There, the defendant asked the trial court to resolve any spousal privilege concerns in a sidebar conference if they arose. The court never ruled on the motion, and when the defendant’s wife testified, the defense made no objection.
On appeal, the defendant tried to argue that the testimony was privileged. The Fourth Circuit rejected the argument — not because it lacked merit, but because it wasn’t preserved. The motion didn’t directly challenge the admissibility of the testimony, and no ruling was ever made. Worse still, no objection was lodged when the evidence came in.
The takeaway: a motion in limine preserves an issue only when (1) the exact argument raised on appeal was squarely presented to the trial court and (2) the court issued a definitive ruling on it. If the trial court’s response is unclear or the motion is denied, you’ll need to object again during trial to keep the issue alive.
2. Raise losing arguments anyway — sometimes they matter.
If controlling precedent forecloses your argument, you may wonder whether it’s even worth raising. The short answer in the Fourth Circuit: yes, it often is.
While the Court normally won’t consider issues not presented below, there’s a narrow exception when an argument was squarely precluded by “strong precedent” that later gets overruled. In United States v. Chittenden, 896 F.3d 633, 639 (4th Cir. 2018), the Court held it had discretion to hear such arguments, even if they hadn’t been raised at trial.
But tread carefully. The boundaries of this exception are murky. The Fourth Circuit hasn’t clearly defined what makes precedent “strong” enough to excuse waiver. And if you’re trying to change the law yourself — not rely on a change made in someone else’s case — you likely need to raise your argument at every stage of litigation.
Bottom line: if you want to preserve an argument for future change, raise it early and often — even if the odds are stacked against you.
3. Footnotes won’t always save your argument.
Many lawyers rely on footnotes to hedge a position or preserve a secondary argument. But in the Fourth Circuit, an argument tucked into a footnote may be treated as waived.
Initially, the Court declined to consider footnoted arguments that were too cursory to satisfy the Federal Rules of Appellate Procedure. See Wahi v. Charleston Area Med. Ctr., 562 F.3d 599, 607 (4th Cir. 2009). But the rule has evolved. In Foster v. University of Maryland Eastern Shore, the Court declined to consider an argument that appeared only in “an isolated footnote,” citing Wahi for support. 787 F.3d 243, 250 n.8 (4th Cir. 2015).
In other words, even well-developed arguments may be deemed forfeited if they show up only below the line. And the Fourth Circuit isn’t alone: the Fifth, Seventh, and Eleventh Circuits follow the same approach.
So if an argument matters, give it real estate in the body of your brief. Otherwise, the Court may pretend it doesn’t exist.
Final Thoughts
The Fourth Circuit isn’t in the business of sandbagging lawyers — but it does demand clarity. Trial counsel should flag legal arguments with appellate implications as early as possible, ensure they’re ruled upon, and renew objections when needed. Appellate lawyers, meanwhile, should review the record for underdeveloped motions, ambiguous objections, and footnote-only arguments that could come back to haunt their client.