Error Preservation Planning for Trial and Appellate Litigation: Begin with the End in Mind1 and Avoid "Gotchas"2
Benjamin Franklin said, "If you fail to plan, you are planning to fail!"3 Franklin's rule is especially applicable to litigation. That planning must begin with the "end" in mind.4 Of course, the "end" is success at both trial and on appeal. Achieving that "end" requires crafting strategies, immediately, at the very outset of the litigation that address all the foreseeable challenges. That takes time, but defaulting from solid, prompt planning and waiting until the "eleventh hour" to prepare can easily cause one to overlook critical, strategic decisions. Then, the "end" you seek can be lost.
Comprehensive litigation planning requires a litigation team to make tough calls early, regarding at least these questions:
- What are the objectives of the litigation for one's client and the adversary?
- What are the possible "gotchas" that must be avoided?
- What jurisdiction and venue are correct for the case?
- What claims and defenses must be asserted for the client?
- What will the adversary assert as its claims and defenses?
- What is the law regarding the claims and defenses?
- What proof can be offered to successfully assert the claims and defenses?
- What pivotal decisions will a trial court have to make?
- How can the client's position, i.e., trial court error, be preserved for appeal?
The last point, preservation of error for appeal, can be the most important of the planning decisions, and it cannot take a back seat to trial phase preparation. Preservation of trial court error must be considered in conjunction with trial phase planning because the appellate phase, where trial court error is asserted, is where a trial win can become a loss, and a trial loss can become a win. So, the comprehensive litigation plan must anticipate the pivotal rulings that will be made by the trial court, the positions that will be taken on those issues by all parties, and critically, how one must present one's position precisely and clearly to the trial court at the time a ruling is made. If that preparation is accomplished and if the trial court errs in its ruling, one will be able to make the record clear that the trial court was made aware of the client's legal position. Then, a potential appellate point may be preserved, and it may be raised on appeal.
This article is separated into two sections. Each section addresses aspects of strategic planning of litigation matters that are akin yet distinct. The first section consists of a series of basic foundational considerations that typically arise well before the meat of the litigation is underway. Those considerations are, in effect, a lengthy checklist of where and how litigation will commence and progress as well as potential roadblocks. The second section addresses the specific planning of trial strategy, error preservation, and strategy for appeal. Those points typically require lawyers to bore into the substance of the case, anticipate the adversary's tactics, and plan for successful presentation in the trial court and on appeal.
II. The Foundational Tasks and Strategy Points: A Checklist
The points set out below address overarching, foundational considerations about where and how litigation will proceed and potential roadblocks to a smooth process.
1. "Gotchas" Checklist
Sometimes, one may inadvertently ignore obvious rule and statutory "tripwires," or "gotchas." It happens. The suggested "Gotcha" Checklist attached to this paper can provide part of a baseline for a trial and appellate plan.1 Simply reviewing a list of those potential "gotchas" can jog one's memory to address a particular potential problem. While the points on the "checklist" may seem elementary, there is no substitute for double-checking. The adage "measure twice, saw once" is appropriate for the trial and appellate practice.
2. Other Foundational Checklist Items Regarding Jurisdiction, Venue, Removal, or Arbitration
a. Selection of Court System and Venue
There are many specific considerations to address when one selects where a lawsuit will be filed. The selection of the court system and venue is an opportunity to set the course of the case.
First, you must determine whether the selected court has jurisdiction over the parties. Second, the law of the possible available forums must be reviewed to determine if the law applicable to the claims is more favorable in one jurisdiction than another. An example is the amount of punitive damages that can be recovered. Some states put a "cap" or statutory limit on the amount that can be recovered.2 Third, a significant consideration is whether the region, state, or city where a court is located is known for judges and jurors who harbor prejudices or customs that could be unfavorable to a party
b. Jurisdiction
In every case, a thorough review should be undertaken of whether or not the selected court has jurisdiction.3 If the court has no jurisdiction, it has no power to act.4 A defendant must raise valid jurisdictional questions by an appropriate motion or pleading requesting that the court dismiss the case.5
Of course, the question of whether there is personal jurisdiction is governed by "due process" under the United States Constitution.6 Further, the question of whether there is subject matter jurisdiction is determined by whether the law of the forum governs the claims raised.
The United States Supreme Court recently repeated long established law discussing the concept of jurisdiction, stating: "[T]he word 'jurisdictional' is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)."7
c. Transfer of Venue and Removal of Suits by Defendants from State Court to Federal Court
In federal courts, venue is governed by statutes not rules.8 Once jurisdiction has been established, the venue must be selected.9 A defendant may challenge the venue where the suit was filed if the venue is "unfair or inconvenient" or another venue has been agreed to by contract.10 A significant strategic consideration for a defendant locked into an unfavorable state court venue is to evaluate the possibility of removal of the state court action to federal court. However, one must be mindful that removal is only possible when the federal court has jurisdiction, such as where there is diversity of citizenship, or the case involves a federal question.11
As a first step in the removal analysis, a defendant should consider if a motion to transfer venue in the state court system could be successful. Reasons for a defendant to pursue a state court transfer of venue are similar in some cases to why one might seek removal. Those include: avoiding local prejudice, seeking a different judge, delaying trial, and different jury pools. Additional reasons for removing a case may include: favorable and strict adherence to procedural rules, different trial procedures such as very limited voir dire,12 obtaining greater expertise on federal questions, and more likely enforcement of arbitration13 and jury waiver clauses.14
When a removal petition is filed, the state case is stayed and transfer to the federal court from the district where the state case was filed occurs immediately.15 The timing for filing a removal petition is critical. Generally, the defendant must file notice of removal within 30 days after the receipt of the initial pleading or within 30 days after the service of summons, whichever period is shorter.16 In addition, a party whose case has been removed by an adversary should consider whether to seek remand.17
d. Enforcing or Blocking the Enforcement of Arbitration Agreements
The foundational issue as to whether arbitration may be compelled is: do the parties have a valid, enforceable agreement to arbitrate.18 That question, in itself, is the subject of an abundance of litigation. The burden of proof as to the validity of the agreement is on the party seeking to enforce the arbitration agreement. Yet, defenses to enforcement of the agreement may be raised as in any contract litigation.19 For instance, an arbitration agreement procured by fraud, or that is unconscionable, is unenforceable.20 Should the trial court determine an arbitration agreement is valid and enforceable, in many situations, that court must determine if a party's claim falls within the scope of that agreement. If the claim falls within the scope of the agreement, the "court has no discretion but to compel arbitration and stay its own proceedings."21
Unless the parties have voluntarily engaged in an arbitration proceeding, the first step in the process of enforcing an arbitration agreement is to apply to the trial court to compel arbitration.22 Once the motion to compel arbitration is filed, as indicated above, the moving party has the burden to prove the agreement is valid.23 Then, the burden shifts to a party opposing enforcement of the agreement to raise affirmative defenses to enforcement.24 Should the trial court deny the motion to compel, the aggrieved party may perfect an interlocutory appeal.25 However, should the trial court grant the motion to compel arbitration, the Federal Arbitration Act (FAA) does not provide for an interlocutory appeal. Under federal law, a party may seek appellate review of an order compelling arbitration only if the order is joined with a final judgment of dismissal.26
In the case of Smith v. Spizzirri, the Supreme Court decided to speak again about the appealability of an order of the district court compelling arbitration.27 The Court pointed out that where a district court renders an order compelling arbitration and a party requests a stay of the proceeding pending arbitration, the district court does not have discretion to dismiss the case. The Court determined "Congress made clear in the statute that, absent certification of a controlling question of law by the district court under 28 U.S.C. § 1292(b), the order compelling arbitration is not immediately appealable. See 9 U.S.C. § 16(b)."28 The choice to "provid[e] for immediate interlocutory appeals of orders denying—but not of orders granting—motions to compel arbitration,"29 is consistent with Congress's purpose in the FAA 'to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible [].'"30 The Court observed when a case is stayed pending arbitration, the parties may avail themselves of the assistance authorized by the FAA. That is, "for example, appointing an arbitrator, see 9 U.S.C. § 5; enforcing subpoenas issued by arbitrators to compel testimony or produce evidence, see § 7; and facilitating recovery on an arbitral award, see § 9."31
Two critical point may be gleaned from the Court's discussion of legislative intent. First, a district court cannot dismiss a case when arbitration is compelled when a party requests the action be stayed. Second, even if the case is stayed, a party can press for an immediate appeal by seeking certification of a controlling question of law by the district court under 28 U.S.C. § 1292(b). That process in itself is complex, both the district court and the court of appeals have broad discretion, and an appeal is definitely not automatic, but it may be necessary to pursue under the right circumstance.32
III. Steps to Planning for Error Preservation and Avoiding Error
A. Anticipate Your Moves and the Adversary's Tactics
Most points in litigation that require error preservation can be anticipated, but consideration must be accorded to the following: a) plotting out what a client must do to present its case or defend against a claim, i.e., planning precisely what evidence will be presented and what witnesses will present that evidence, b) understanding what the adversary will likely do to prosecute its claim or defend against a claim, and c) anticipating objections to the opponent's evidence that one's team should make, anticipating objections that are likely to be made to the evidence you will present for the client, and preparing a specific response with authorities to make a record regarding the trial court's ruling. As discussed hereafter, to preserve a point for appeal, the record must show that the issue was brought to the trial court's attention, that the trial court had the opportunity to correct the erroneous ruling or order at the time, and that the judge actually ruled.33 Otherwise, the error may be deemed waived or forfeited.
As stated above, a litigation plan must "begin with the end in mind." The "end" is the final appeal and preserving your client's position for appeal. Some may question, or even disregard, the need to plan for appeal before the trial phase begins. However, the point is this: obviously, at the beginning of a lawsuit, no one knows who will win and if the judgment in the case will be appealed. If, at the beginning of a well-planned trial court phase, one has failed to carefully plan to preserve error by proper objections, motions, or responses and, after trial, one is on the losing side, the failure to preserve error means you lose on appeal.
B. Marshall the Evidence and Plan the Order of Proof
Knowing what evidence is on hand and identifying what evidence is needed to prove one's case is, perhaps, the most critical early step for a litigation plan. It follows on the heels of the basic pivotal questions listed above. Organization of the evidence must not wait until all of the evidence is collected. Rather, one should prepare a chart that lists each element of each claim or defense, lists the evidence in hand and needed through discovery,34 and sets forth in detail precisely how to introduce the evidence at trial.35When the evidence is catalogued and ready to present at trial, one must prepare to preserve error should an objection block admission into the record of the evidence.
C. Preservation of Error
1. Strategy for Trial Phase and Appellate Phase are Different but Complementary
The strategy for preserving error for appeal is interwoven with the trial phase plan for discovery, pretrial motions, and actual trial presentation. Those trial phase plans are directed at obtaining evidence, evaluating the evidence, constructing a plan to prove the elements of a claim or defense, and ultimately presenting the evidence at trial in a credible, convincing manner. On the other hand, error preservation and appeal plans require a party to anticipate what the adversary might do and how the trial court might rule. It is an exercise in considering "what ifs" regarding issues that may necessitate a ruling during trial.
"What ifs" can include, among other things, erroneous rulings by a trial court that sustain an objection to presentation of one's evidence or overrule one's objection to evidence offered by an adversary or an adverse ruling on a motion of virtually any type. The list of "what ifs" on material points should be developed by considering the strategy for discovery, pretrial motions, and case presentation by one's own team as well as anticipating the strategy of and proof that will be presented by the adversary. Sometimes rulings by the trial court on the "what if " propositions can be the difference between winning or losing both at trial and on appeal.
2. Making the Record
a. In General
As a general rule, appellate courts decline to review an issue that was not preserved.36 The United States Supreme Court has defined error preservation in these broad terms: "It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below." This general rule ensures that parties "'have the opportunity to offer all the evidence they believe relevant to the issues'" and litigants are "'not [ ] surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.'"37
More specifically, the record must show that the litigant "timely rais[ed] claims and objections" such that the district court had the "opportunity to consider and resolve them."38 Otherwise, the litigant's "claim for relief from the error is forfeited."39
One must be mindful that, on appeal, the party claiming error must demonstrate that the claimed erroneous ruling affected "any outcome in the case and, as a result, [the party's] substantial rights."40 That is, the party complaining about the error must show it is "harmful error."41 These rules apply to any trial court error.
3. Critical Steps to Make the Record
b. Documentary and Testimonial Evidence
When the claimed error is the exclusion of evidence, the complaining party must have actually offered the evidence and secured an adverse ruling from the court. That is not all. The proponent of the evidence must also offer the evidence to the court for the record in order to complain of the exclusion on appeal.42
A record of testimonial evidence may be made either by interrogating a witness under oath on the record or by precisely stating the substance of the evidence in a statement to the court.43 To make an offer of proof as to excluded documentary evidence, the documents should be identified on the record by exhibit number and submitted as an offer of proof to be included in the record.44
2. Motions and Responses
In order for written motions and responses to motions to be understood and effective, one must prepare them with proper citations to and discussion of the law and cite to and attach copies of any relevant evidence, case law, statutes, or rules.45 Once again, this process will clearly advise the trial court of the parties' positions and show the appellate court that the trial court was fully appraised of the position for which error is claimed on appeal. For instance, a party's arguments in opposition to a motion for summary judgment can be forfeited if "perfunctorily presented" or presented in a conclusory or underdeveloped manner."46 Even if the opponent defended against a perfunctory argument out of an abundance of caution, the argument may still be forfeited on appeal because entertaining the argument "would ... punish the opponent" for their thoroughness.47
3. Jury Instructions
Each party must meet its burden to submit jury instructions in accordance with the law.48 Any requested question, definition, or instruction must be submitted to opposing counsel and the trial court in writing.49 Objections to the proposed jury instructions must be presented to the trial judge in writing or dictated into the record so that the trial judge is apprised of the law supporting the proffered instructions or the objections made to the adversary's proposed instructions.50 Any such request must be separate and apart from the party's objections.51 This process will not only advise the trial court of the proper path to follow to avoid error but will also demonstrate to the appellate court that the trial court had an opportunity to draft jury instruction in accordance with the law.52 If the instructions were erroneous, the party must still show the error was harmful before the appellate court may reverse.53
4. Post-Verdict or Judgment Motions
Any motions to disregard answers to the jury questions, to modify the judgment, or for new trial must be filed in writing, in a fashion that is thorough, clear, and succinct (i.e., does not contain meritless arguments). As in the instances set out above, the claimed error must be clearly described to demonstrate that the trial court was informed and had a full opportunity to correct the error.54 Such motions will also be useful to focus the appellate courts on the error claimed to be prejudicial.55
Footnotes
1 See Hon. Douglas S. Lang and Kathleen E. Kraft, Checklist: Federal Court Gotchas and Other Dilemmas, The Fed. Law., Summer 2025, at 59, infra.
2 See, e.g., Tex. Civ. Prac. & Rem. Code Ann. § 41.008.
3 Consider the amount in controversy, subject matter, and any other limits on a court's authority. 28 U.S.C. § 1331 (federal question jurisdiction exists when an action arises under the Constitution, laws, or treaties of the United States); 28 U.S.C. § 1332(a) (federal courts have diversity jurisdiction when the action involves controversies between parties of diverse citizenship and the amount in controversy exceeds $75,000).
4 Subject-matter jurisdiction cannot be waived or forfeited because it "involves a court's power to hear a case." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630 (2002)). See also Boechler, P.C. v. Comm'r., 596 U.S. 199 (2022); Ex parte McCardle, 74 U.S. (7 Wall) 506, 514 (1868) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause."). "[C]hallenges to subject-matter jurisdiction may be raised by the defendant 'at any point in the litigation,' and courts must consider them sua sponte." Fort Bend Cnty., Texas v. Davis, 587 U.S. 541, 548 (2019) (internal citation omitted).
5 A plaintiff must overcome an initial presumption that the federal court lacks subject matter jurisdiction. Howery v. Allstate Ins., 243 F.3d 912, 916 (5th Cir. 2001). See rules addressing challenge to jurisdiction, Fed. R. Civ. P. 12(b)(1) (subject matter jurisdiction), Fed. R. Civ. P. 12(b)(2) (lack of personal jurisdiction over defendant).
6 "'[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'" Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). See also Walden v. Fiore, 571 U.S. 277, 285 (2014) ("But the plaintiff cannot be the only link between the defendant and the forum. Rather, it is the defendant's conduct that must form the necessary connection with the forum State that is the basis for its jurisdiction over him.").
7 Fort Bend Cnty., Texas, 587 U.S. at 548; Kontrick v. Ryan, 540 U.S. 443, 455 (2004).
8 See generally 28 U.S.C. §§ 1390, 1391. See also 28 U.S.C. §§ 1404, 1406; Fed. R. Civ. P. 12(h)(1).
9 See 28 U.S.C. § 1391(b)(1-3) (Generally a civil action may be brought in a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.).
10 28 U.S.C. § 1404(a); see also Atl. Marine Const. Co. v. United States Dist. Court, 571 U.S. 49, 52 (2013) ("When a defendant files such a motion [to transfer to enforce a forum-selection clause], we conclude, a district court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer.").
11 28 U.S.C. §§ 1441-1446.
12 Fed. R. Civ. P. 47(a) (providing that the "court may permit the parties or their attorneys to examine prospective jurors or may itself do so. If the court examines the jurors, it must permit the parties or their attorneys to make any further inquiry it considers proper, or must itself ask any of their additional questions it considers proper"). However, as a practical matter, jury selection in some federal courts is conducted by the judge. Any questioning by lawyers is typically limited in scope and time allotted.
13 See 9 U.S.C. §§ 3, 4.
14 "While the right to a jury trial is fundamental, 'a contractual waiver is enforceable if it is made knowingly, intentionally, and voluntarily.'" Aquino v. Alexander Cap. LP, No. 23-1109 (L), 2024 WL 2952497, at *2 (2d Cir. June 12, 2024) (quoting Merrill Lynch & Co. v. Allegheny Energy, Inc., 500 F.3d 171, 188 (2d Cir. 2007)). See also Pizza Hut L.L.C. v. Pandya, 79 F.4th 535 (5th Cir. 2023). "The Seventh Amendment of the Constitution preserves the common law right to a jury trial in civil suits. U.S. Const. amend. VII. The right, however, may be waived by prior written agreement of the parties." Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986); RDO Fin. Servs. Co. v. Powell, 191 F. Supp. 2d 811, 813 (N.D. Tex. 2002). "There is a presumption, however, against a waiver of the right to a jury trial." Yumilicious Franchise, L.L.C. v. Barrie, No. 3:13-CV-4841-L, 2014 WL 4055475, at *11 (N.D. Tex. Aug. 14, 2014) (citing Powell, 191 F. Supp. 2d at 813), reconsideration denied, 2015 WL 1822877 (N.D. Tex. Apr. 22, 2015), aff 'd, 819 F.3d 170 (5th Cir. 2016). Such written agreements to waive the right to jury trial are generally enforceable against parties who bring suit, if the waiver was made knowingly, voluntarily, and intelligently. Jennings v. McCormick, 154 F.3d 542, 545 (5th Cir. 1998) (discussing waiver in the civil context)." Servicios Comerciales Lamosa, S.A. v. De La Rosa, 328 F. Supp. 3d 598, 619 (N.D. Tex. 2018).
15 28 U.S.C. § 1446(d).
16 Id. § 1446(b).
17 See id. § 1447 (addressing grounds and procedure).
18 AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) ("We have described this provision [of the Federal Arbitration Act] as reflecting both a 'liberal federal policy favoring arbitration,' ... and the 'fundamental principle that arbitration is a matter of contract,' ... In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, ... and enforce them according to their terms, ...") (internal citations omitted).
19 See Halliburton Energy Servs. v. Ironshore Specialty Ins. Co., 921 F.3d 522, 530 (5th Cir. 2019).
20 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403- 04 (1967) (Interpreting § 4 to permit federal courts to adjudicate claims of "fraud in the inducement of the arbitration clause itself."). See also Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996) ("[G]enerally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements without contravening § 2.").
21 Prima Paint Corp., 388 U.S. at 403-04. Cf. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995) ("The U.S. Supreme Court has explained that there are three types of disagreements in the arbitration context: (1) the merits of the dispute; (2) whether the merits are arbitrable; and (3) who decides the second question."); Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65 (2019) (the parties may "agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes."); First Options, 514 U.S. at 943 ("Arbitration clauses that assign gateway questions such as the arbitrability of the dispute are an established feature of arbitration law." (citing Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010)).
22 See 9 U.S.C. §§ 3, 4.
23 Halliburton Energy Servs., 921 F.3d at 530 (describing federal procedure for motion to compel arbitration and discussing Texas state law that governs whether the arbitration agreement is valid).
24 See AT&T Mobility LLC, 563 U.S. at 339.
25 See 9 U.S.C. § 16.
26 Mire v. Full Spectrum Lending Inc., 389 F.3d 163, 165-67 (5th Cir. 2004) (Administrative closure of case is not a final judgment and case no appealable); Green Tree Financial Corp. Alabama v. Randolph, 531 U.S. 79, 87 (2000) (order compelling arbitration and dismissing suit with prejudice is a final judgment subject to appeal).
27 Smith v. Spizzirri, 601 U.S. 472, 478 (2024).
28 Id.
29 Coinbase, Inc. v. Bielski, 599 U.S. 736, 740 (2023).
30 Smith, 601 U.S. at 478.
31 Id.
32 Consider the situation where a party seeks a stay rather than dismissal respecting a wrinkle in the law as to for example whether the issues are subject to arbitration. The process has two steps. First, the district court must agree with a party that the issues should be certified to the court of appeals. Second, the court of appeals must determine in its discretion whether it will accept the submission.
33 See § III, infra.
34 See, e.g., Fed. R. Civ. P. 16 (pretrial conference and order); Fed. R. Civ. P. 26(a) (disclosures; when required); Fed. R. Civ. P. 26(f) (discovery conference, schedule); Fed. R. Civ. P. 27-28, 30 (depositions); Fed. R. Civ. P. 31 (depositions by written questions); Fed. R. Civ. P. 33 (interrogatories to parties); Fed. R. Civ. P. 34 (production of documents and electronically stored data); Fed. R. Civ. P. 35 (physical and mental examinations); Fed. R. Civ. P. 36 (requests for admissions); Fed. R. Civ. P. 37 (failure to make disclosures, cooperate in discovery, sanctions); Tex. R. Civ. P. 192.7 (requests for production); Tex. R. Civ. P. 199.2, 205.1(c) (non-party production at oral deposition); Tex. R. Civ. P. 194.2(j), (k), 204, 510(d)(5) (medical records); Tex. R. Civ. P. 191, 192, 194 (request for disclosure); Tex. R. Civ. P. 197 (interrogatories); Tex. R. Civ. P. 198 (requests for admissions); Tex. R. Civ. P. 199, 200 (depositions); Tex. R. Civ. P. 202 (depositions before suit or to investigate claims); Tex. R. Civ. P. 205.3(b) (non-party notice of production). See also Tex. R. Evid. 509(e)(4).
35 Fed. R. Evid. 901-1008.
36 "Failure to challenge the sufficiency of the evidence in a motion for a new trial or a motion for judgment notwithstanding the verdict will result in waiver of the issue on appeal ... except in exceptional circumstances." Pounds Photographic Labs, Inc. v. Noritsu America Corp., 818 F.2d 1219, 1226 (5th Cir. 1987) (citing Bueno v. City of Donna, 714 F.2d 484, 493-94 (5th Cir. 1983)). Exceptional circumstances exist "when a pure question of law is involved and the asserted error is so obvious that the failure to consider it would result in a miscarriage of justice." Id. (citing Payne v. McLemore's Wholesale & Retail Stores, 654 F.2d 1130, 1145 (5th Cir. 1981)). See also Longoria v. Hunter Express, Ltd., 932 F.3d 360, 363 (5th Cir. 2019).
37 Singleton v. Wulff, 428 U.S. 106, 120 (1976) (quoting Hormel v. Helvering, 312 U.S. 552, 556 (1941)); Polara Eng'g, Inc. v. Campbell Co., 894 F.3d 1339, 1355 (Fed. Cir. 2018).
38 Puckett v. United States, 556 U.S. 129, 134 (2009).
39 Id.
40 McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 553 (1984) ("The harmless error rules adopted by this Court and Congress embody the principle that courts should exercise judgment . . . and ignore errors that do not affect the essential fairness of the trial."); Dresser-Rand Co. v. Virtual Automation, Inc., 361 F.3d 831, 842 (5th Cir. 2004) (recognizing that "this Court is bound to disregard any errors . . . that do not affect the substantial rights of the parties" and that "[t]he burden of proving substantial error and prejudice is upon the appellant"); MultiPlan, Inc. v. Holland, 937 F.3d 487, 501-02 (5th Cir. 2019). See also Fed. R. Civ. P. 61; Fed. R. Evid. 103(a), (e).
41 See Fed. R. Civ. P. 61 ("Unless justice requires otherwise, no error in admitting or excluding evidence--or any other error by the court or a party--is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."). See also 28 U.S.C. § 2111 ("On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.").
42 Fed. R. Evid. 103(a)(2).
43 Porter-Cooper v. Dalkon Shield Claimants Trust, 49 F.3d 1285, 1287 (8th Cir. 1995); See, e.g., Cuff v. Trans States Holdings, Inc., 768 F.3d 605, 609 (7th Cir. 2014) ("When a district judge excludes evidence, the party aggrieved by that decision must make an offer of proof if it wants to raise the issue on appeal. Fed. R. Evid. 103(a)(2). An offer of proof in a situation like this would be something along the lines of: "Manager X would testify that, had he known Fact Y [the fact excluded from evidence], he would have fired Cuff.'").
44 Bommarito v. Penrod Drilling Corp., 929 F.2d 186, 191 (5th Cir. 1991) (without a proffer of the documentary evidence, court of appeals was unable to evaluate whether the trial court erred).
45 See Fed. R. Civ. P. 7, 11, 12, 56. One is not obliged to attach documents, but attachments can clarify a party's position.
46 Pond v. Michelin North America, Inc., 183 F.3d 592, 597 (7th Cir. 1999).
47 Williams v. Dieball, 724 F.3d 957, 962 (7th Cir. 2013).
48 Fed. R. Civ. P. 51 (a), (b).
49 Id.
50 Fed. R. Civ. P. 51 (c), (d).
51 Id.
52 Id.; Phillips v. IRS, 73 F.3d 939, 941 (9th Cir. 1996) (when error is properly preserved, standard of review is abuse of discretion as to whether the charge was misleading or inadequate); Jimenez v. Wood Cty., 660 F.3d 841, 845 (5th Cir. 2011) (when objection is not properly preserved, appellate court can only consider plain error that affects substantial rights).
53 See Fed. R. Civ. P. 51(d) (as to Instructions to the Jury); Fed. R. Civ. P. 61 (errors are to be disregarded as to any ruling, judgment, or order "that do not affect any party's substantial rights"). See also Martin's Herend Imports, Inc. v. Diamond & Gem Trading United States Co., 195 F.3d 765, 774 (5th Cir. 1999) ("We will not disturb the judgment unless the error could have affected the outcome of the trial."); Thomas v. Hughes, 27 F.4th 995, 1009 (5th Cir. 2022) ("'To show reversible error, the party challenging the instruction 'must demonstrate that the charge as a whole creates substantial and ineradicable doubt whether the jury has been properly guided in its deliberations.' ... We 'will not reverse unless the instructions taken as a whole do not correctly reflect the issues and law.'") (internal citations omitted).
54 See ORP Surgical, LLC v. Howmedica Osteonics Corp., 92 F.4th 896, 922 (10th Cir. 2024) ("Under Rule 59(e), a party may move the court 'to alter or amend a judgment' within 28 days after the entry of judgment. ... A Rule 59(e) motion 'is appropriate where the court has misapprehended the facts, a party's position, or the controlling law.' ...When a party raises one of these challenges, the motion preserves that issue for appellate review.'") (internal citations omitted). Cf. Elm Ridge Expl. Co., LLC v. Engle, 721 F.3d 1199, 1219 (10th Cir. 2013) (deciding that a Rule 59(e) motion could preserve issues for appeal where the appellant neglected to renew its motion for judgment as a matter of law).
55 Fed. R. Civ. P. 59 (new trial, altering or amending judgment); Fed. R. Civ. P. 60 (relief from judgment or order); Fed. R. Civ. P. 61 (harmless error); Fed. R. Civ. P. 62 (stay of proceedings to enforce judgment); Fed. R. Civ. P. 62.1 (indicative ruling on a motion for relief that is barred by pending appeal).
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Originally published by Summer 2025 edition of The Federal Lawyer
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