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I Object! A Blog on Preservation of Error

June 2015

June 30, 2015 9:59 AM | Posted by Wendy F. Lumish & Steven Blickensderfer | Permalink
Preservation of Error TipsToday, it is rare for a trial to take place without the use of PowerPoint presentations. They most often appear during opening statement, the examination of experts, and closing argument. So let’s suppose that opposing counsel puts up a PowerPoint with highly prejudicial images or misrepresentations about your client. Of course you object. The court sustains your objection, orders the particular slides removed, instructs the jury accordingly, but denies your motion for a mistrial. Thereafter, you suffer an adverse verdict. You have done what you need to pursue this issue on appeal, right? Wrong. read more
June 17, 2015 9:45 AM | Posted by Dean A. Morande | Permalink
Preservation of Error TipsMost practitioners would agree that, if the court excludes an expert based on a Daubert or Frye challenge—and that is the only expert opining on a subject—then in most instances there should be no need to proffer the expert’s testimony in order to preserve any potential error for appeal. But what if the court excludes only a portion of the expert’s opinion? Is a proffer necessary to allow for meaningful appellate review? read more
June 3, 2015 1:53 PM | Posted by Joseph H. Lang, Jr. | Permalink

Preservation of Error TipsYour summary judgment motion was denied. You have proceeded to trial. You are preparing a Rule 50 motion. Should you include those issues raised in your denied summary judgment motion? Must you do so?

We know from Ortiz v. Jordan, 562 U.S. 180 (2011), that you generally cannot appeal the order denying your summary judgment motion after trial. Rather, those issues must be preserved with Rule 50 motions, based on the full trial record. The Supreme Court has recognized an exception to this general rule when the order denying summary judgment involves “a purely legal issue” capable of resolution “with reference only to undisputed facts.” But it can be dangerous to put too much faith in that exception when framing your Rule 50 motions. We previously provided a tip on this in December.

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