If you do not make an argument at first instance, you cannot appeal a judgement on the ground that it was not considered. So you're fighting in the lower court

If you do not make an argument at first instance, you cannot appeal a judgement on the ground that it was not considered. So you're fighting in the lower court because you need to fight there. Remember, it's the fight that costs money, so no matter what you're always on the hook for something. The question ends up being are you on the hook for the cost of the fight or the cost of paying them off.