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Pre-Trial/Trial Strategies


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 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
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 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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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 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
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
May 23, 2016 9:36 AM | Posted by Jason Patrick Kairalla and Charles W. Throckmorton | Permalink
Videotaped depositions can be an effective trial tool. read more
April 5, 2016 3:39 PM | Posted by Joseph H. Lang Jr. | Permalink
An unpublished opinion from the Tenth Circuit Court of Appeals in January 2016 caught our eye because it collected various established preservation-of-error principles for objecting to a magistrate judge's report and recommendation in one place. read more
March 14, 2016 12:08 PM | Posted by Christine Davis Graves and Charles W. Throckmorton | Permalink
If you actively litigate your removed case in federal court before timely moving to remand, do you waive the right to remand? It depends on the Circuit.   read more
February 10, 2016 2:49 PM | Posted by Jeff A. Cohen & Meredith W. Caiafa | Permalink
Without a crystal ball, trial lawyers can make objections only on the basis of what has occurred or what they reasonably expect might occur based on the facts and circumstances existing at the time.  Litigation, however is a fluid process and an objection that was sufficient at point X might not be sufficient at point Y.  A recent Pennsylvania case provides an illustration of this. read more
January 27, 2016 11:41 AM | Posted by Nancy Ciampa & James E. Parker-Flynn | Permalink
Recognizing splits of authority and knowing where your court stands on the issue can be critical to avoid waiver. Lawson v. Sun Microsystems, Inc., 791 F.3d 754 (7th Cir. 2015), cert. denied, 84 USLW 3130 (U.S. 2016), illustrates the danger when there is a circuit court split. read more
January 12, 2016 10:15 AM | Posted by David L. Luck and Michael D. Sloan | Permalink
The Seventh Circuit’s decision in German American Financial Advisors & Trust Co. v. Rigsby, No. 15-1612, --- F. App’x ----, 2015 WL 5579751 (7th Cir. Sept. 23, 2015), highlights the preservation pitfall of forfeiting a personal-jurisdiction defense through litigation on the merits. read more
December 2, 2015 1:49 PM | Posted by Jason Patrick Kairalla & Charles W. Throckmorton | Permalink
With regard to preservation of an issue for appeal, how close is close enough? read more
November 20, 2015 3:24 PM | Posted by Dean A. Morande | Permalink
Joining in a co-party’s brief or motion can be cost effective, but the careful litigator should make sure to explain to the court how the other party’s arguments apply to your client. Failure to do so may result in waiver, as a recent federal circuit court decision makes clear. read more
November 6, 2015 10:13 AM | Posted by Joseph H. Lang, Jr. | Permalink
May you preserve an objection to personal jurisdiction by including a general denial to the complaint’s allegation in your answer and then moving to dismiss on personal jurisdiction grounds less than three (3) months later? According to the court’s analysis in Fabara v. GoFit, LLC, 308 F.R.D. 380 (D.N.M. 2015), the answer is yes. But the district court observed that a defendant may waive the defense by waiting much longer than that or by actively participating in the case through filing counterclaims or third-party claims, participating in discovery, participating in hearings, or filing dispositive motions on the merits. read more
September 29, 2015 8:08 AM | Posted by Jeffrey A. Cohen and Namrata S. Joshi | Permalink
It may not always be apparent whether a potential basis for remand is procedural or impacts subject matter jurisdiction. As a recent federal case from Kentucky demonstrates, identifying issues and classifying them early is critical to avoid waiver of procedural issues. read more
September 9, 2015 11:03 AM | Posted by Nancy C. Ciampa and Justin S. Wales | Permalink
The Seventh Amendment to the United States Constitution, which is binding upon only federal courts, and many state constitutions provide a right to a trial by jury.  But the right to a jury trial, even when constitutionally guaranteed, may be waived, contractually before litigation is contemplated, or by a party or their lawyer’s actions or inaction during the court proceedings.  A recent Connecticut state appellate court decision addresses the latter type of waiver, which may occur by failing to object to the absence of a jury before or during the bench trial. read more
August 25, 2015 2:46 PM | Posted by Cristina Alonso and Charles Throckmorton | Permalink
A recent Pennsylvania case presents the question: can a party rely on its co-defendant’s objections at trial, or must it join in an objection or make its own? read more
August 14, 2015 9:27 AM | Posted by Wendy F. Lumish | Permalink
Preservation of Error Tips

Several months ago, we reported on a case in which a Florida court ruled that in order to take advantage of a change in the law, a party must first make the proper objection at trial.  In other words – trial lawyers were expected to be fortune tellers.  In a decision rendered recently by the 11th Circuit Court of Appeals, the court addressed this issue in the context of appellate briefing.

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August 3, 2015 3:30 PM | Posted by Alina Alonso Rodriguez & James E. Parker-Flynn | Permalink
Preservation of Error TipsWhere the jury finds liability and no damages, an objection that the verdict is inconsistent does not preserve the argument that the verdict is the result of an unlawful compromise, says the Eleventh Circuit  in Reider v. Philip Morris USA, Inc., No. 14–11494, 2015 WL 4256726 (11th Cir. July 15, 2015).  There, a jury returned a verdict finding the defendant 5% liable for the death of the plaintiff’s husband, but awarded no damages.  The plaintiff argued that the verdict was inconsistent and asked the court to send the jury back to re-deliberate damages.  Upon denial of the objection, the plaintiff moved for a mistrial on the same grounds, and the trial court again denied the motion. read more
May 22, 2015 9:12 AM | Posted by Christine Davis Graves | Permalink
Preservation of Error TipsIt is often beneficial to limit the issues at trial to those that are truly disputed and to stipulate to facts that are no longer in dispute.  In some cases, for example, liability may be sharply disputed, but the amount of damages are undisputed.  In this instance, the parties can stipulate prior to trial that, if the plaintiff prevails on a certain issue, the plaintiff will be entitled to a specified amount of damages.  In the haste leading up to trial, however, certain details, such as elements of damages that are not readily apparent, may be forgotten and thus waived if not included in the stipulation. read more
April 22, 2015 2:53 PM | Posted by Jeffrey A. Cohen and James Parker-Flynn | Permalink
Preservation of Error TipsAs we have discussed many times in this blog, one of the fundamental rules of appellate practice is if something is not in the record, it did not happen. For that reason, it is important to try to eliminate arguments held “off the record,” or where circumstances dictate that off-the-record arguments take place, to ensure an adequate record gets made so that the appellate court can ascertain what was said and why. read more
March 11, 2015 2:13 PM | Posted by Wendy F. Lumish and Namrata S. Joshi | Permalink
Preservation of Error TipsThe recent case Baker v. R.J. Reynolds Tobacco Co., 2015 WL 671192 (Fla. 4th DCA Feb. 18, 2015), underscores the significance of objecting at trial to preserve error on appeal in unsettled areas of the law or in anticipation that precedent may change.  In some courts, like Florida, the failure to timely object results in waiver of the issue on appeal. read more
February 26, 2015 1:57 PM | Posted by Alina Alonso Rodriguez & Justin Wales | Permalink
Preservation of Error TipsA recent case out of Montana, Peterson-Tuell v. First Student Transp., LLC, 339 P.3d 16 (Mont. Nov. 15, 2014), highlights the importance of a Rule 403 challenge and of making your challenges and objections as comprehensive and specific as possible.  There, after being involved in an auto accident, the plaintiff demonstrated no signs of injury, but later claimed the accident caused her to sustain a mild traumatic brain injury that caused her to have memory loss and difficulty concentrating. The plaintiff filed a negligence claim. The defendant admitted liability, leaving damages as the only issue. read more
February 13, 2015 10:46 AM | Posted by Jack Reiter and Charles Throckmorton | Permalink
Preservation of Error TipsTo preserve an issue for appellate review while at trial, is it acceptable to rely on a standing objection advanced when the issue first arises?  Or should you renew your position whenever confronted with objectionable conduct or evidence?  A recent Delaware decision illustrates the fine line between renewing an objection to preserve it for appeal and going overboard by repeating the objection when the trial judge has already ruled on it. read more
January 12, 2015 5:52 PM | Posted by Joseph H. Lang, Jr. | Permalink

Preservation of Error TipsThe Eleventh Circuit’s decision in Dudley v. Eli Lilly and Co., 2014 WL 7360016 (11th Cir. Dec. 29, 2014), highlights the risk of waiving (or, at a minimum, postponing) an otherwise proper removal by not creating a proper record to allow a federal court to assess the amount in controversy.

Preservation Issue: Making a Record in Support of Removal to Federal Court

On December 29, 2014, the Eleventh Circuit issued its decision in Dudley v. Eli Lilly and Co., which impacts removal practice under the Class Action Fairness Act.

In Dudley, the plaintiff filed a class action, alleging that the defendants had failed to make one or more of four different types of incentive payments to former employees. The district court remanded the case, finding that “Lilly’s proffers about the amount in controversy were purely speculative because Lilly had failed to identify a specific number of class participants made up of only those employees who did not receive their promised compensation; and had failed to identify the amount each member was entitled to receive as compensation.” Dudley, 2014 WL 7360016, at *1.

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November 6, 2014 2:37 PM | Posted by Cristina Alonso and Charles W. Throckmorton | Permalink

Preservation of Error TipsDoes your motion in limine sufficiently preserve your objection to the introduction of evidence at trial, or do you need to be on your toes to make a contemporaneous objection at trial?  A recent Illinois decision illustrates the best practice of renewing arguments raised in motions in limine at trial.

In Roach v. Union Pacific R.R., 2014 IL App. (1st) 132015, a wrongful death suit, the defendant moved in limine to preclude the testimony of the decedent’s family physician regarding the cause of death.  The trial court denied the motion.

On the morning of the day that the physician’s testimony was going to be read into evidence at trial, the defendant renewed his...

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