Carlton Fields Home Page
I Object! A Blog on Preservation of Error

Preservation of Error Blog by Carlton Fields


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
February 14, 2017 11:15 AM | Posted by Christine Davis Graves | Permalink
TipsIn Byrd v. Stubbs, 190 So. 3d 26 (Miss. Ct. App. 2016), the Mississippi Court of Appeals reminded us of the need to be diligent during a charge conference by raising specific objections to a proposed jury instruction, as opposed to a general objection. In Byrd, the plaintiff in a medical negligence case objected to a proposed superseding cause instruction on the grounds that the instruction was not supported by the evidence. It was not until her motion for new trial – after the verdict was rendered – that the plaintiff asserted that the proposed instruction was a misstatement of law. read more
January 25, 2017 4:44 PM | Posted by Matthew J. Conigliaro | Permalink
TipsYour opponent files a motion for summary judgment. At a hearing on the motion, you point to an affidavit in the record to show that material questions of fact exist. Long before your opponent moved for summary judgment, you had filed that affidavit along with a notice stating your intent to rely upon the affidavit “for any purpose” permitted by the rules of civil procedure and the rules of evidence. read more
January 3, 2017 9:57 AM | Posted by Joseph H. Lang, Jr. | Permalink
TipsOn November 21, 2016, the First Circuit offered practitioners yet another reminder that, as the charges and verdict form evolve through colloquys with the trial judge, there is a continuing obligation to object; the timing of objections to jury instructions and verdict form can sometimes take on more importance than the fact of an objection at the start. See In re Nexium (Esomeprazole) Antitrust Litigation, 842 F.3d 34, 59 (1st Cir. 2016). read more
December 15, 2016 10:04 AM | Posted by Chris Freeman and Meredith Caiafa | Permalink

Federal Rule 12(g)(2) generally prohibits a successive motion to dismiss based on grounds that were known at the time of the original motion. This rule was tested in VNB Realty, Inc. v. U.S. Bank Nat’l Assoc., No. 2:13-4743, 2015 WL 8490948 (D. N.J. Dec. 10, 2015). There, at the time defendant U.S. Bank filed a motion to dismiss, the Second Circuit was considering an issue of first impression that could have potentially provided an additional basis for dismissing the plaintiff’s complaint. Rather than fully briefing that argument in its motion, U.S. Bank informed the court of the situation and stated that it was expressly preserving the argument pending the Second Circuit’s decision.

read more
December 6, 2016 8:53 AM | Posted by Jorge A. Perez Santiago | Permalink

The case of Mid-S. Iron Workers Welfare Plan v. Harmon, 645 F. App’x 661 (10th Cir. 2016), teaches a valuable, if oft-repeated reminder: undeveloped arguments in the lower court may not be considered on appeal.

read more
November 22, 2016 11:22 AM | Posted by Nicholas A. Brown | Permalink
Traditionally, when litigants think of preservation, they think about advancing an argument in a lower court in order to be able to present it to a higher court on appeal if necessary. But the strict requirements for preservation are by no means so limited. read more
October 26, 2016 12:06 PM | Posted by Jason Patrick Kairalla | Permalink
From a technological standpoint, it is now relatively simple to present live video and audio testimony during a court proceeding of a witness located anywhere in the world. There are many advantages to presenting testimony in this fashion, but care must be taken to address potential appellate issues and preserve a clean record. read more
October 10, 2016 12:20 PM | Posted by Steven Blickensderfer | Permalink

Preservation of Error TipsThe Sixth Circuit’s split decision last month finding Article 3 standing in a data breach case is the first of its kind post-Spokeo. See Galaria v. Nationwide Nos. 15-3386/3387 (6th Cir. Sept. 12, 2016) (unpublished). It is significant in many ways related to its substance, and for good reason. By its decision, the Sixth Circuit seems to have created an even deeper divide between the circuits on the issue of consumer standing to pursue data breach claims in federal court.

Although not as cutting-edge of an issue, the case is also notable for the preservation-related pleading lessons that can be learned from the majority and dissenting opinions.

read more
September 23, 2016 12:45 PM | Posted by Chris W. Altenbernd and Adriana Gardella | Permalink
While trial attorneys know they must preserve issues they wish to raise on appeal, they often overlook the basic steps required to help ensure appellate review. During more than 27 years on the bench, former Florida appellate court judge and Carlton Fields shareholder Chris Altenbernd saw attorneys make the same mistakes repeatedly. Based on those observations, he shared tips for trial attorneys during a recent conversation, which has been edited and condensed. read more
September 19, 2016 9:45 AM | Posted by David Luck and Zachary Ludens | Permalink

I Object! TipsOne preservation issue that seems to receive less attention than it should is the potential need for a cross-appeal.  An appellee/respondent who is not entirely successful in the trial court may challenge an unfavorable portion of a final judgment or order by filing a cross-appeal.  Indeed, the cross-appeal is typically the sole means that an appellee/respondent has to request relief from the order or judgment appealed by the appellant.  Thus, it is the method for the partial or nominal winner below to challenge an unfavorable portion of an otherwise favorable final judgment or order.

read more
September 6, 2016 10:41 AM | Posted by E. Kelly Bittick | Permalink
In Frigaliment Importing Co. v. BNS Int’l Sales Corp., 190 F. Supp. 116 (S.D.N.Y. 1960), Judge Friendly famously asked “What is chicken?” A case decided last year raises the question, “What is a Daubert motion?” read more
August 3, 2016 10:00 AM | Posted by Matthew J. Conigliaro | Permalink
Imagine a trial judge is trying to move things along at a charge conference. An issue arises, trial counsel begins to voice objections, and the judge short-circuits the discussion by saying, “Your rights are saved on the issue.” Later, the trial is lost, appellate relief is needed, and a question arises about what exactly the incomplete objection preserved. read more
July 7, 2016 10:13 AM | Posted by Chris W. Altenbernd and James Parker-Flynn | Permalink
Every experienced civil trial lawyer knows that when the judge rules against you on an objection at trial, you need to build a record to show that the court’s ruling was not only wrong, but harmful. For generations, and in almost every jurisdiction, the “harmless” error rule has placed the burden of persuasion on the appellant to show that an error in a civil case was harmful. read more
June 28, 2016 1:58 PM | Posted by Nancy C. Ciampa and Michael D. Sloan | Permalink
Just because you know what your excluded evidence would have shown does not mean that the trial court knows and, as importantly for appellate purposes, that the appellate court can glean from the record the substance of the evidence or the basis for the denial of its admission. read more
June 15, 2016 1:51 PM | Posted by Nicholas A. Brown | Permalink
Don’t assume that just because your argument is clearly reflected somewhere in the record that it is preserved for appeal. read more
June 1, 2016 3:56 PM | Posted by Jorge Pérez Santiago and Stephanie Fichera | Permalink
With the advent of courtroom technology, parties are increasingly relying on audiovisual evidence or demonstrative aids to present their case to the trier of fact. Sometimes, however, counsel fail to specifically object to some aspect of the presentation – whether it be an objection to certain portions of the content, or to the timing or introduction of the presentation to the jury. read more