Issue Preservation Toolkit

Resources to assist counsel with raising and preserving issues and arguments for appellate review at the pretrial, trial, and post-trial stages of civil litigation in federal court. These resources provide guidance on how to raise and preserve issues for appeal by using pleadings, pre-answer motions to dismiss, motions in limine, summary judgment motions, proffers and contemporaneous objections during trial, jury instructions and verdict forms, post-judgment motions, objections to magistrate judge rulings, and notices of appeal.

Practical Law Litigation

Creating a robust record and properly preserving all potential issues for appeal is a challenging but important task, particularly in complex litigation. Because federal appellate courts generally are limited to reviewing issues, evidence, and arguments that were brought before the district court, any issues and arguments that are not properly presented to the district court in a timely fashion usually are deemed waived on appeal. As a result, many otherwise promising appeals have been lost due to counsel's failure to preserve the record.

Yet, counsel frequently consider an appellate strategy only after an unexpected loss. All too often, counsel:

  • Forego novel legal challenges in the press of trial preparation.

  • Waive errors in the spirit of compromise or to avoid offending the trial judge or jury.

  • Badly mishandle a case during trial, and hand off the case to new appellate counsel in the hope that the appeal can "fix" the mistakes.

However, where errors are waived or key arguments are left unstated, the appellate lawyer's hands are tied. Counsel's ability to anticipate and preserve issues for appeal separates strong appeals from weak ones, and provides an important backstop in unsuccessful cases.

The resources in this Issue Preservation Toolkit provide guidance on raising and preserving issues and arguments for appellate review at the pretrial, trial, and post-trial stages of civil litigation in federal court. For additional information on protecting the record on appeal and common deadlines in federal civil litigation, see:

 

Pleadings

 

Pre-Answer Motions to Dismiss

 

Summary Judgment Motions

 

Motions In Limine

 

Magistrate Judge Rulings

 

Trial

 

Post-Judgment Motions

 

Appeal

 
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