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