Carlton Fields Home Page
I Object! A Blog on Preservation of Error


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
June 28, 2016 1:58 PM | Posted by Nancy C. Ciampa and Michael D. Sloan | Permalink
Just because you know what your excluded evidence would have shown does not mean that the trial court knows and, as importantly for appellate purposes, that the appellate court can glean from the record the substance of the evidence or the basis for the denial of its admission. 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
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
March 1, 2016 9:58 AM | Posted by Matthew J. Conigliaro | Permalink
Trials often are preceded or interrupted by hearings on motions in limine, where parties attempt to limit the evidence or arguments that their opponents can utilize in the trial. read more
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 9, 2015 1:18 PM | Posted by Nancy C. Ciampa and Michael D. Sloan | Permalink
Preservation of Error TipsIt is generally understood that the “sham affidavit doctrine” will prevent a party from creating an issue of material fact to defeat summary judgment by filing an affidavit that contradicts its prior deposition testimony. However, a recent decision in the Middle District of Pennsylvania reminds us that the “sham affidavit doctrine” can be applied more broadly and is not limited to contradictions with deposition testimony. 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 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.

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.

read more
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.

read more
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...

read more