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I Object! A Blog on Preservation of Error

Preservation of Error Blog by Carlton Fields

August 13, 2018 3:17 PM | Posted by Dean Morande and Nick Brown | Permalink
A fundamental principle of preservation is that the lower court must have had an opportunity to address an issue before an appellate court will reverse an order based on that issue. In most circumstances, a specific request for relief is sufficient to preserve an issue for appellate review. But the Eleventh Circuit recently confirmed that simply asking for relief is not necessarily enough. read more
July 6, 2018 1:54 PM | Posted by Jason Kairalla and Jill Orticelli | Permalink

Trial counsel must make strategic decisions about whether and how to pursue their position before the court, striking a balance between preservation and the court’s ire. But when it comes to motions for a directed verdict, keeping mum will leave you in a bind.

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June 12, 2018 3:06 PM | Posted by Nancy Ciampa and Mariko Shitama Outman | Permalink

It is axiomatic that objections not presented to the trial court are deemed waived on appeal. What may come as a surprise, however, is that waiver arguments can also be waived. Thus, a party’s failure to raise a waiver argument in its response to an opponent’s post-trial motions may waive the waiver argument for appeal.

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June 4, 2018 10:40 AM | Posted by Christine Davis Graves and James Parker-Flynn | Permalink

Most recognize the well-known rule that, “once a trial court has definitively ruled on an issue on the record, before or during trial, a party need not renew an objection at trial to preserve a claim for appeal.” A slightly less well-known corollary, however, provides: “yes, but make sure you’re the one who actually objected in the first instance.”

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May 3, 2018 4:48 PM | Posted by David L. Luck and Stephanie A. Fichera | Permalink

The time for appealing from an order, whether final or non-final, is typically jurisdictional. If the appellant or petitioner misses the applicable deadline, the appellate court lacks jurisdiction to review the order on appeal.

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April 6, 2018 3:48 PM | Posted by James Parker-Flynn and Sylvia Walbolt | Permalink

The United States Supreme Court recently clarified that cases consolidated under Rule 42(a) of the Federal Rules of Civil Procedure retain their independent identities “at least to the extent that a final decision in one is immediately appealable by the losing party.”

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March 23, 2018 10:43 AM | Posted by Joseph H. Lang, Jr. and Ben Stearns | Permalink

It’s a cardinal rule that to preserve an argument at trial, counsel must make a contemporaneous objection. Even cardinal rules, however, have their exceptions.

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March 6, 2018 10:11 AM | Posted by Richard Ovelmen and Rachel Oostendorp | Permalink

Appellate attorneys (hopefully!) understand the need to preserve arguments for appeal by raising them before the trial court and in their opening briefing. But what about the difference between waiver and forfeiture of arguments, and the impact it makes on an appellate court's review?

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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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