I thought you might enjoy this quote from Judge Frank Easterbrook’s opinion in Jentz v. ConAgra Foods, Inc. (7th Cir., Sept. 9, 2014), at page 6.
Judge Easterbrook was responding to an appellee who argued that the defendant did not “feature” a particular defense at trial. Although it may not have played a significant role at trial, that defense ended up winning the day on appeal.
This quote is a reminder to every appellant’s counsel to carefully examine the record to discover what issues can be raised on appeal. The winning issue may not be the one that made the greatest splash at trial.