Appealing Issues In Federal Practice

by:  Peter J. Gallagher

The New Jersey Law Journal published one of my articles this week, Going Through the (Rule 56 and Rule 50) Motions, that discusses the steps litigators must take in order to properly preserve for appeal the arguments they make during trial.  This is an issue that is important to any litigator appearing in federal court, whether on behalf of a real estate client or otherwise, and one that too many litigators ignore until it is too late. 

The article focuses on the U.S. Supreme Court's decision in Ortiz v. Jordan, a case where the Court considered whether a party is permitted to appeal the denial of a summary judgment motion after a full trial on the merits. The answer to this question was a unanimous no. However, a majority of the Supreme Court went one step further. In addressing an issue that neither of the parties included in their petitions for certiorari, the Supreme Court ruled that, to be preserved for appeal, defenses raised at trial must be renewed through post-trial motions under both Rule 50(a) and Rule 50(b). In making this ruling, the Supreme Court not only resolved a split in the federal courts, but also provided a road map for practitioners to follow if they plan to appeal adverse decisions from the trial court. 

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