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I Object! A Blog on Preservation of Error

Preservation of Error Blog by Carlton Fields


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
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.

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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.

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