Your firm is five years into a bet-the-company suit. Trial has come and gone, and multiple parties have appealed. After a week of intense negotiations, you send a mass email to your team: “Pencils down everyone! We’ve...more
It is basic, but critical, to persuade the court that the result you seek is the right result. The court has to feel good about ruling in favor of your client. As Judge Gurfein of the Second Circuit aptly stated, “It is still...more
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 Legislature recently amended Florida Statutes section 26.012 and, in so doing, eliminated circuit court jurisdiction over most county court appeals. Effective January 1, 2021, most county court rulings will now be...more
No matter how good the technology is, a virtual appellate oral argument is different from a live one. No matter how good an oral advocate you are, your virtual argument likely will not be quite as effective as a live one. But...more
I constantly preach the need to read the whole case once you find that wonderful sound bite by a computer search. But I recently came across some research indicating that jurors follow admonitions in the court’s instructions...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 Ninth Circuit recently questioned several appellate lawyers about misleading statements in their briefs, including quotes from cases with ellipses, thereby omitting the very language that showed the quote and case were...more
You are on your feet at the podium and you have told the appellate panel who you are and whom you represent. What is the first substantive thing you should now tell the court (always assuming you get that opportunity before...more
Everyone fears getting a question during oral argument that they don’t know the answer to or that only has an answer not helpful to their position on appeal....more
Appellate advocates should write briefs that make life easier for law clerks and judges. That will increase their chances of prevailing on appeal. With that in mind, we recently conducted an informal survey of our firm’s...more
Clients should not be cheerleaders when they review drafts of appellate briefs. They should take steps to make the brief more effective from the judges’ viewpoint. Asking the following questions as they review their lawyers’...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
This chart provides a quick reference regarding motions and objections that may be made immediately prior to, during, and immediately after trial to preserve issues for appellate review.
...more
12/20/2016
/ Appeals ,
Bifurcation ,
Cross Motions ,
Depositions ,
Evidence ,
Jury Instructions ,
Jury Verdicts ,
Litigation Strategies ,
Motion to Amend ,
Motions in Limine ,
Objection Procedures ,
Objections ,
Opening Statements ,
Preservation of Rights ,
Summary Judgment ,
Trial Preparation
In November 2007, an article titled “Off the Record,” which was co-authored by one of this article’s authors, was published in this Journal. It began by saying “[e]very good appellate lawyer knows that an appeal is...more
When you are the appellant, you always have the burden of persuasion in seeking a reversal. Even on a de novo review, you are starting at least a step behind, psychologically.
A reply brief may be the last word and the...more
Jury instructions are important in winning the case before the jury. They can also provide grounds for appeal if errors are properly preserved. The following points address the most common problems we appellate lawyers see...more
1. Always bring appellate counsel into the case before trial. If the case is important enough to try, it almost certainly will be important enough for the loser to appeal.
2. Always, at the very least, involve...more
Jury instructions obviously are important in winning the case before the jury. ...more
Direct evidence of a matter at issue will not always be available; consequently, civil litigants may sometimes establish facts effectively and conclusively with circumstantial evidence. Nielsen v. City of Sarasota, 117 So. 2d...more
Jury instructions are the mechanism that provides the jury with the proper legal structure to analyze the evidence that has been presented at trial. Without proper guidance through good instructions on the law, the jury is...more
Litigants settle lawsuits and claims every day, for a multitude of different reasons, including purely economic ones. Litigation is costly and, as a practical matter, it may be better to pay something to make a claim go away...more