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Preservation of Rights Litigation Strategies

Carlton Fields

Rejecting Precedent: What Cases About Abortion Rights and the Sixth Amendment Teach Us About Preserving Objections to Existing...

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As the Supreme Court has been debating judicial adherence to the doctrine of stare decisis recently, it bears remembering that litigants seeking a change in the law applicable to their case should make sure to preserve that...more

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Peremptory Strike: Preserving Every Error During a Peremptory Challenge

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The Florida Supreme Court recently reminded us of an adage of trial practice: Do not depend on a perceived mistake by the trial court to preserve an issue for appeal. A lawyer must fulfill his or her obligation to spell out...more

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The Game of Forfeiture: Fumbling the Ball and How the Court May Recover It

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In the spirit of the upcoming Super Bowl, it is important to keep in mind certain rules of play regarding forfeiture of arguments in federal courts of appeals. The Tenth Circuit reiterated two such rules in recent opinions....more

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To Move for Rehearing or Not to Move for Rehearing: That Is the Question

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In almost every situation, a party would prefer to defend a favorable judgment on appeal rather than fight to reverse a negative judgment. And when we are forced to be the appellant, we want the error in the challenged...more

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When Is a Defense “Available”? Avoiding Waiver by Being Bold When Asserting Defenses

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It is well known that, at least in the federal system and Florida, a defendant who fails to raise lack of personal jurisdiction in a pre-answer motion to dismiss waives that defense. But there is an exception to this rule: If...more

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Unforced Errors: Don't Leave a Ground of the Court's Ruling Unchallenged

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We have previously explained the importance of appealing every aspect of a trial court's order granted on multiple, independent grounds. The Eleventh Circuit recently reminded us of that, but also that in opposing motions at...more

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Don’t Waive Goodbye to Your Right to a Jury Trial

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The Seventh Amendment guarantees a right to a jury trial in cases arising under the common law. But even that fundamental right can be waived if not properly asserted in the lower court....more

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Don't Estop Believin' - Courts May Save Your Judicial Estoppel Argument

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The equitable doctrine of judicial estoppel prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding. Generally, the doctrine is raised by a...more

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Using Post-Trial Motions To Argue Error For The First Time

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Among the many benefits of utilizing appellate counsel at trial is that appellate counsel can assist in timely raising possible errors, and if error is not asserted when it occurs, then appellate counsel may be able to raise...more

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Preserving The Record For Appeal: A Trial Lawyer's Checklist

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This checklist is intended as an overview to help trial lawyers preserve the record for appeal. It is not exhaustive of all steps necessary to preserve error in every situation. Certain rules may vary by state/federal...more

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More Is Usually Better: One Objection to An Expert’s Opinion Will Not Necessarily Preserve a Challenge to Its Admission

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In challenging the admission of an expert opinion, you should not assume that, because you objected on one basis, you have properly preserved for appeal objections on other grounds....more

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Preserved, Actually: Preservation Of Arguments Definitively Rejected By The Trial Court

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Does a party have to reassert an argument previously rejected by the trial court in order to preserve it for appeal? ...more

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Is Your Sufficiency Challenge Sufficiently Preserved for Appeal?

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Attorneys often treat the question of the sufficiency of the evidence as a binary inquiry: either the evidence is sufficient to support the verdict, or it isn’t. But a Missouri appellate court recently called that view into...more

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Careful What You Ask For: Think Twice Before Asking the Appellate Court to Uphold Pleadings You Failed to Fix in the Trial Court

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In Jackson v. Bank of America, N.A., 898 F.3d 1348, 1358 (11th Cir. 2018), the Eleventh Circuit reminded appellate lawyers that just because they can appeal a case does not necessarily mean they should....more

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All Hope Is Not Lost: Raising A New Argument On Appeal

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Your client has brought you an appeal, and you quickly spot what looks like a winning argument. Unfortunately, it was never raised or argued below. Being a savvy appellate lawyer, you understand you cannot raise it for the...more

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Timely And Specific: Making Objections To Federal Magistrate Reports

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Although it might be obvious to attorneys who routinely practice in the federal courts, for those who do not, it is important that specific and timely objections to a federal magistrate’s report and recommendation are filed...more

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When Asking For Relief Is Not Enough: Eleventh Circuit Affirms A First Dismissal With Prejudice

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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. ...more

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Good For The Goose, Good For The Gander: Waiver Of A Waiver Objection

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It is axiomatic that objections not presented to the trial court are deemed waived on appeal. What may come as a surprise, however, is that waiver arguments can also be waived. Thus, a party’s failure to raise a waiver...more

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Objecting To Violations Of Prior Rulings

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Most recognize the well-known rule that, “once a trial court has definitively ruled on an issue on the record, before or during trial, a party need not renew an objection at trial to preserve a claim for appeal.” A slightly...more

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For Want Of A Deadline: Avoiding A Jurisdictional Pitfall

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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...more

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Objection, Interrupted

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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....more

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So You're Telling Me There's A Chance! – The Difference Between Waiver and Forfeiture

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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...more

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From De Novo To Clear Error: Don't Risk Your Standard Of Review When Objecting To A Magistrate's Report

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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,...more

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Appeal it All! Guarding Against Multiple, Independent Grounds

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You’ve identified a killer issue for appeal, no doubt a winner. Congratulations! You still lose. How can that be? In Novum Structures, LLC v. Choate Construction Company, Inc., 698 Fed. Appx. 608 (11th Cir. 2017), the...more

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When in Doubt, Assume the Earliest Possible Deadline

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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....more

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