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I Object! A Blog on Preservation of Error


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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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
November 22, 2016 11:22 AM | Posted by Nicholas A. Brown | Permalink
Traditionally, when litigants think of preservation, they think about advancing an argument in a lower court in order to be able to present it to a higher court on appeal if necessary. But the strict requirements for preservation are by no means so limited. read more
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 19, 2016 9:45 AM | Posted by David Luck and Zachary Ludens | Permalink

I Object! TipsOne preservation issue that seems to receive less attention than it should is the potential need for a cross-appeal.  An appellee/respondent who is not entirely successful in the trial court may challenge an unfavorable portion of a final judgment or order by filing a cross-appeal.  Indeed, the cross-appeal is typically the sole means that an appellee/respondent has to request relief from the order or judgment appealed by the appellant.  Thus, it is the method for the partial or nominal winner below to challenge an unfavorable portion of an otherwise favorable final judgment or order.

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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
June 15, 2016 1:51 PM | Posted by Nicholas A. Brown | Permalink
Don’t assume that just because your argument is clearly reflected somewhere in the record that it is preserved for appeal. read more
June 1, 2016 3:56 PM | Posted by Jorge Pérez Santiago and Stephanie Fichera | Permalink
With the advent of courtroom technology, parties are increasingly relying on audiovisual evidence or demonstrative aids to present their case to the trier of fact. Sometimes, however, counsel fail to specifically object to some aspect of the presentation – whether it be an objection to certain portions of the content, or to the timing or introduction of the presentation to the jury. 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
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 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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May 4, 2015 9:58 AM | Posted by Matthew J. Conigliaro | Permalink
Preservation of Error TipsWhere a party challenges a trial court’s ruling excluding testimony, appellate courts generally require the substance of the excluded evidence to have been set forth on the record or else the challenge will not be properly preserved for review. Can you make your offer of proof (also referred to as a proffer) at the end of the trial, as opposed to the time when the witness would have given the testimony? 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 5, 2015 2:31 PM | Posted by Sylvia Walbolt and Zachary Ludens | Permalink

Preservation of Error TipsHave you ever found yourself without record proof of a negative—in other words, that you or opposing counsel did not take certain action in a case—only to then have to prove it at a later stage at trial or on appeal?  In an older case that recently caught our attention, Winn Dixie Stores, Inc. v. Miles, 616 So. 2d 1108 (Fla. 5th DCA 1993), the appellant learned the hard way what happens with respect to negatives in the absence of record proof.

In Winn Dixie, a personal injury case, the defendant wanted to show that the treating chiropractor was biased in favor of plaintiffs. To do so, defendant requested everything that had occurred in the twelve months prior to the treatment, and  that the chiropractor identify every case that resulted in a lawsuit.

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