So I have an #AppellateTwitter tale for you. Here is a recent appellate court describing a familiar appellate rule. Except I know that this is not right. Or at least, not complete. Because it has to be an issue *presented*and in the record. 1/

OK, so what's that BlueBonnet case say? The same thing, it turns out. 2/

OK, but surely Holtzclaw will tell the unsuspecting the litigant the rest of the story.

Oh, I see. /3

Ah, Texas Refrigerators to the rescue, definitely, yes?

No. /4

Finally, back in 1991, we have the actual rule, in the FDIC case. /5

This is not to knock the court. They're using shorthand. But this is a pet peeve because I've had both opposing counsel try this on me, and seen drafts by co-counsel with the error (in a place it matters). /6

If you don't happen to know the full rule, it would be very easy to miss it and go happily off reviving an argument never made at trial to get your case affirmed. Until the Court, which knew the rule all along, smooshes you.

OK, tale over. /e