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I Object! A Blog on Preservation of Error

Directed Verdict/Judgment as a Matter of Law

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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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
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
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
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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December 8, 2014 8:30 AM | Posted by Matthew J. Conigliaro | Permalink

Preservation of Error Tips

The Fifth Circuit’s decision in Blessey v. Marine Services, Inc., --- F.3d ---, 2014 WL 5837059 (5th Cir. Nov. 10, 2014), highlights two different ways that adverse pretrial rulings can wind up unreviewable.

Preservation Issue: Summary Judgment
Prior to trial, the appellant sought summary judgment on a purely legal issue. The trial court denied the motion, and the case proceeded to a trial by jury. The appellant lost and challenged the summary judgment ruling on appeal. The Fifth Circuit held that while other circuits will review “purely legal issues” decided on summary judgment prior to trial, the Fifth Circuit follows the view that, once a jury trial is held, the appellate court lacks jurisdiction to consider the summary judgment ruling.

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November 20, 2014 10:29 AM | Posted by Jeffrey A. Cohen and Justin S. Wales | Permalink

Preservation of Error TipsThe specificity required in a motion for judgment as a matter of law/directed verdict (“JMOL”) can present challenges to counsel as they argue motions under Rule 50 or its state-law equivalents. Halo Electronics, Inc. v. Pulse Electronics, Inc., --- F.3d ---, 2014 WL 5352367 (Fed. Cir. Oct. 22, 2014), illustrates what happens when a party fails to raise a particular issue in a pre-verdict motion for JMOL.

In Halo Electronics, a jury awarded $1.5 million in damages via general verdict, implicitly rejecting the defendant’s obviousness defense and finding the patent infringement to be willful. Post-verdict, the defendant filed a motion for JMOL based on the obviousness issue. The district court held that because the defendant did not file a pre-verdict motion for JMOL on that issue, the argument had been waived. The Federal Circuit affirmed.

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