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I Object! A Blog on Preservation of Error


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
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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October 10, 2016 12:20 PM | Posted by Steven Blickensderfer | Permalink

Preservation of Error TipsThe Sixth Circuit’s split decision last month finding Article 3 standing in a data breach case is the first of its kind post-Spokeo. See Galaria v. Nationwide Nos. 15-3386/3387 (6th Cir. Sept. 12, 2016) (unpublished). It is significant in many ways related to its substance, and for good reason. By its decision, the Sixth Circuit seems to have created an even deeper divide between the circuits on the issue of consumer standing to pursue data breach claims in federal court.

Although not as cutting-edge of an issue, the case is also notable for the preservation-related pleading lessons that can be learned from the majority and dissenting opinions.

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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
July 15, 2015 8:50 AM | Posted by Cristina Alonso and Zachary D. Ludens | Permalink
Preservation of Error TipsIt is not uncommon for a party to seek leave to amend as an alternative form of relief in response to a motion to dismiss or for summary judgment. But it may not be enough to just say that if the court is inclined to grant the motion to dismiss or for summary judgment, then the court should instead grant leave to amend; rather it may be necessary to specify how the pleading may be amended. If this is not done, an appellate court has no basis for determining whether a lower court abused its discretion in dismissing a claim or affirmative defense without providing leave to amend. A recent decision out of the Eighth Circuit illustrates this point. read more
October 2, 2014 8:26 AM | Posted by Wendy F. Lumish and Jorge Perez Santiago | Permalink
Preservation of Error Tips

A recent case out of Connecticut, White v. Mazda Motor of Am., Inc., 313 Conn. 610 (2014), illustrates the importance of sufficiently pleading claims and defenses, and moving for leave to amend the pleadings if there is some question or doubt as to whether a claim or a defense has been sufficiently pled. 

In White, the plaintiff initiated a product liability action against Mazda and the auto dealership after his vehicle caught fire. He alleged that there was a specific defect in the fuel line. After the plaintiff’s expert’s revealed that he was not an expert in the area in which he proposed to testify, and he declined to provide an opinion regarding whether the automobile was defective, the defendants moved for summary judgment arguing that the plaintiff could not prove a specific defect. The trial court granted summary judgment based on the absence of expert testimony as to a specific defect...

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