In the Lavabit judgement, I saw this:

see also Agra, Gill & Duffus, Inc. v. Benson, 920 F.2d 1173, 1176 (4th Cir. 1990) ("We will not accept on appeal theories that were not raised in the district court except under unusual circumstances.").

Of course it justifies why the rule is applied for this case, but what is the original reason this rule was applied?

3 Answers 3


There are two types of appeals. Under de novo appeals, the facts are questioned, in which case it is possible to raise new (factual) arguments, almost as if the first proceeding had never taken place.

Most appeals are appeals on the record, which means that only the application of the law is being appealed. Under these circumstances, the facts (as found by e.g. a jury) cannot be challenged, and therefore new (factual) arguments can't be raised, only legal arguments.

  • But the citation in the question is about theories, not facts.
    – phoog
    Dec 16, 2015 at 6:19
  • @phoog:The point is that litigants are allowed more leeway with facts than with theories, because it is possible that certain facts were "not known" at the time of trial. But you were supposed to know (and raise) all the relevant theories at trial. You seldom get "re-does" for theories, but often for facts.
    – Libra
    Mar 18 at 0:20

This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals:

  • The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system.
  • Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time.
  • If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient.
  • Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer.

* "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.


In the United States, appeals are generally appeals on the record. The only thing that can be challenged is process; that is, appeals must contend that there was something unfair or incorrect about the process of the original proceeding.

  • 2
    This is probably correct but we could really use a good canonical and well referenced answer to this. I suspect this question will be used as a duplicate close reason quite a bit so having a high quality answer would be of great benefit to the site.
    – Chad
    May 27, 2015 at 0:00

You must log in to answer this question.