Lawyer, Raise Thy Issue

The Fifth Circuit reminded about the basics of issue statements in Smith v. Delta Charter Group, Inc.:

Delta also forfeited its argument that the district court should have instead applied Rule 54(b). Delta didn’t include this argument in its “Statement of the Issue” or in the body of its opening brief—rather, Delta relegated it to a footnote. We have repeatedly cautioned that arguments appearing only in footnotes are “insufficiently addressed in the body of the brief” and are thus forfeited. Delta’s Rule 54(b) argument meets this predictable fate.

No. 23-30063 (Dec. 13, 2023).  Note that this is NOT a criticism of the “citational footnote”–and in fact, the concept of the citational footnote rejects this sort of stealthy, footnote-only legal argument.