News & Analysis as of

Preservation of Rights

Taking A Toll: The Effect Of Post-Judgment Motions On Appeal Deadlines

by Carlton Fields on

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...more

When in Doubt, Assume the Earliest Possible Deadline

by Carlton Fields on

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

The Ins and Outs of Appellate Statements of Jurisdiction: How to Avoid Common Mistakes

by Carlton Fields on

Though Statements of Jurisdiction may seem like a simple part of an appellate brief, parties often make mistakes in drafting jurisdictional statements. In fact, the U.S. Court of Appeals for the Seventh Circuit recently...more

Bullet-Point Update: Electronic and Federal Court Discovery Issues for the Week of July 14, 2017

by Carlton Fields on

Cloud Computing - • Use this to convince your clients that their cloud storage may be discoverable: Open Text Corp. v. Grimes, 2017 WL 2733937 (D. Md. June 26, 2017) (Noting earlier entry of an agreed order requiring a...more

Bullet-Point Update: Electronic and Federal Court Discovery Issues for the Week of July 7, 2017

by Carlton Fields on

Cloud Computing - Use this to convince your clients that their cloud storage will be discoverable: PC Connection, Inc. v. Mereos, 2017 WL 1078121 (D. Md. March 22, 2017)(Awarding emergency injunction requiring independent...more

Right for the Wrong Reason - Reversal Requires More Than Just an Error

by Carlton Fields on

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...more

The Air of Preservation Is Now Filled With “Specific” Arguments

by Carlton Fields on

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,...more

Preserving Constitutional Issues: Three States, Three Cases, One Hard Lesson

by Carlton Fields on

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. ...more

Butler Quarterly - Winter 2017

Two recent federal cases highlight the challenges practitioners face in presenting expert claims handling testimony in bad faith litigation under the Daubert standard. In the first case, a court excluded such expert testimony...more

Litigant Beware: Ignore the Duty to Reconstruct the Record Under Rule 10(c) at Your Peril

by Carlton Fields on

In 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...more

The Key to Jury Instruction Preservation: Objecting with Precision and Completeness

by Carlton Fields on

In Byrd v. Stubbs, 190 So. 3d 26 (Miss. Ct. App. 2016), the Mississippi Court of Appeals reminded us of the need to be diligent during a charge conference by raising specific objections to a proposed jury instruction, as...more

Pitfalls Of Relying On Evidence Previously Filed “For Any Purpose” When Opposing Summary Judgment

by Carlton Fields on

Your opponent files a motion for summary judgment. At a hearing on the motion, you point to an affidavit in the record to show that material questions of fact exist. Long before your opponent moved for summary judgment, you...more

Don't Win The Battle And Lose The War: Preserving Error For Appeal (And Why You Need An Appellate Lawyer)

Errors will happen during litigation and at trial. They are simply inevitable. Many of them will be harmless. But when the error is harmful, a trial lawyer’s nightmare is finding out (too late) that the error was not...more

When Objecting Once Is Not Enough: Recognizing a Continuing Duty as the Charges and Verdict Form Evolve

by Carlton Fields on

On November 21, 2016, the First Circuit offered practitioners yet another reminder that, as the charges and verdict form evolve through colloquys with the trial judge, there is a continuing obligation to object; the timing of...more

Quick Trial Checklist

by Carlton Fields on

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. Please see full Chart below for...more

District Of New Jersey Rewards Defendant’s Candor, Finds No Waiver In Successive Motion to Dismiss

by Carlton Fields on

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,...more

“Waive” Your Undeveloped Arguments Goodbye

by Carlton Fields on

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. Harmon...more

Appeal Dismissed: SCOTUS Delivers Tough Lesson to Be Careful What You Ask For

by Carlton Fields on

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...more

Avoiding Close Calls: Sixth Circuit’s Galaria v. Nationwide Decision Offers Valuable Pleading Tips

by Carlton Fields on

The Sixth Circuit’s split decision last month finding Article 3 standing in a data breach case is the first of its kind post-Spokeo. See Galaria v. Nationwide Nos. 15-3386/3387 (6th Cir. Sept. 12, 2016) (unpublished). It is...more

A Former Appellate Court Judge Offers Tips to Trial Attorneys

by Carlton Fields on

While trial attorneys know they must preserve issues they wish to raise on appeal, they often overlook the basic steps required to help ensure appellate review. During more than 27 years on the bench, former Florida appellate...more

Contemplating Cross-Appeals – When “Winners” Need to Appeal

by Carlton Fields on

One preservation issue that seems to receive less attention than it should is the potential need for a cross-appeal. An appellee/respondent who is not entirely successful in the trial court may challenge an unfavorable...more

Be Wary About A Trial Court's Assurances of Preservation

by Carlton Fields on

Imagine a trial judge is trying to move things along at a charge conference. An issue arises, trial counsel begins to voice objections, and the judge short-circuits the discussion by saying, “Your rights are saved on the...more

D.C. Circuit Rejects NLRB's Award of Attorneys' Fees and Expenses in Unfair Labor Practice Cases

by Littler on

The U.S. Court of Appeals for the D.C. Circuit recently rejected the National Labor Relations Board’s attempt to expand the remedies available under the National Labor Relations Act for unfair labor practices. Building on...more

Seeing is Believing: Preserving Your Argument as to Audiovisual Evidence and Demonstrative Aids in the Courtroom

by Carlton Fields on

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...more

Waive Your Right to a Jury Goodbye

by Carlton Fields on

The Seventh Amendment to the United States Constitution, which is binding upon only federal courts, and many state constitutions provide a right to a trial by jury. But the right to a jury trial, even when constitutionally...more

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