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
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 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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
When the court makes an evidentiary ruling off the record, it is required to enter on the record an explanation of the reasoning behind its decision. See, e.g., United States v. Nolan, 910 F.2d 1553, 1559 (7th Cir. 1990); 28...more