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I Object! A Blog on Preservation of Error

Pre/Post-Trial Motion Practice


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 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
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
December 15, 2016 10:04 AM | Posted by Chris Freeman and Meredith Caiafa | Permalink

Federal Rule 12(g)(2) generally prohibits a successive motion to dismiss based on grounds that were known at the time of the original motion. This rule was tested in VNB Realty, Inc. v. U.S. Bank Nat’l Assoc., No. 2:13-4743, 2015 WL 8490948 (D. N.J. Dec. 10, 2015). There, at the time defendant U.S. Bank filed a motion to dismiss, the Second Circuit was considering an issue of first impression that could have potentially provided an additional basis for dismissing the plaintiff’s complaint. Rather than fully briefing that argument in its motion, U.S. Bank informed the court of the situation and stated that it was expressly preserving the argument pending the Second Circuit’s decision.

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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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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
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
April 20, 2016 11:45 AM | Posted by Dean A. Morande and James E. Parker-Flynn | Permalink
Even apart from the importance of assuring appellate review, properly preserving the record and carefully laying out one’s argument can have an immediate impact at the trial level.
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