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I Object! A Blog on Preservation of Error

Preservation of Error Blog by Carlton Fields


February 6, 2018 1:50 PM | Posted by Sylvia H. Walbolt and Nicholas A. Brown | Permalink

Most attorneys know that failing to contemporaneously object to an adverse ruling can subject the issue to a more stringent standard of review on appeal. For example, failing to object below to a ruling of law means that, instead of applying de novo review, the appellate court will not reverse that ruling absent fundamental or clear error.

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January 3, 2018 2:45 PM | Posted by James E. Parker-Flynn | Permalink

You’ve identified a killer issue for appeal, no doubt a winner. Congratulations! You still lose. How can that be?

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November 14, 2017 1:59 PM | Posted by David L. Luck and Stephanie A. Fichera | Permalink

Counsel contemplating an appeal often depend on the “tolling” effect of authorized post-judgment motions, which can extend an otherwise-applicable appeal deadline. In particular, in most federal civil cases, the appellant has 30 days from the rendition of the applicable final order or judgment in which to file its notice of appeal.

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September 20, 2017 11:12 AM | Posted by Christine Davis Graves and Gabriella S. Paglieri | Permalink

One of the most important factors in preserving your appellate rights is knowing when the clock starts running on your deadline to appeal. While the answer may appear simple as a matter of course, that is not always the case. In Love v. Wal-Mart Stores, Inc., 865 F.3d 1322 (11th Cir. 2017), the Eleventh Circuit dismissed an appeal as untimely because it was not filed within 30 days of a stipulation of voluntary dismissal under Rule 41. This decision reminds practitioners that, when in doubt, assume the earliest possible deadline for your appeal.

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July 31, 2017 3:04 PM | Posted by Rick Ovelmen and Alix Cohen | Permalink

Though Statements of Jurisdiction may seem like a simple part of an appellate brief, parties often make mistakes in drafting jurisdictional statements. In fact, the U.S. Court of Appeals for the Seventh Circuit recently wrote: “There is no reason why, month after month, year after year, the court should encounter jurisdictional statements with such obvious flaws.” Baez-Sanchez v. Sessions, 2017 WL 2927632, at *3 (7th Cir. July 10, 2017).

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July 7, 2017 3:55 PM | Posted by Sylvia H. Walbolt and Nicholas A. Brown | Permalink
Emails can create many problems for litigants and their lawyers, but a recent appellate decision in Florida demonstrates yet another peril: proper service, and thus preservation, of demands for sanctions. read more
May 25, 2017 4:42 PM | Posted by Dean A. Morande | Permalink
Challenging an adverse judgment on appeal is an uphill battle from the start. A major part of winning an appeal requires demonstrating that an error occurred and confirming that the error was properly raised in the trial court. But more may be required. If the judgment can be affirmed on a basis unaffected by the error, then an appellate court will not reverse. read more
April 13, 2017 12:38 PM | Posted by Chris W. Altenbernd and James E. Parker-Flynn | Permalink
To win, trial lawyers must master the art of persuasion. But when they lose, they are tested by their mastery of the art of preservation. As standards of review in appellate courts have become increasingly demanding, preservation often requires coordination with your appellate attorney. read more
March 13, 2017 1:02 PM | Posted by James E. Parker-Flynn | Permalink
Late last year, three states illustrated an important point about preserving constitutional law issues for appeal: always be on the lookout for constitutional law issues at the beginning of the case. read more
February 28, 2017 10:11 AM | Posted by David Luck | Permalink
TipsIn Roberts v. Ferman, 826 F.3d 117 (3d Cir. 2016), the Third Circuit sought to clarify the circumstances in which a party forfeits arguments made in a post-trial motion by refusing to agree to reconstruct the record under Federal Rule of Appellate Procedure 10(c). read more