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Using Post-Trial Motions to Argue Error for the First Time

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 the issue at another point in the trial or even through post-trial motions. Post-trial motions, though, can be particularly challenging when it comes to asserting error for the first time.

Cougar Canyon Loan, LLC v. Cypress Fund, LLC, No. 20170413-CA, 2019 WL 1388786 (Utah Ct. App. Mar. 28, 2019), a recent decision from the Utah Court of Appeals, helps illustrate the point. Following an adverse verdict on securities fraud claims, the defendant moved for a new trial, arguing that a statute of limitations barred the claim because a corporate agent's early knowledge of the fraud should have been imputed to the plaintiff corporation, but the jury was not instructed on that point of law. That argument had not been previously raised.

Unfortunate for the defendant, the trial court denied the defendant's post-trial motions and did so without addressing the merits of the limitations argument. The appellate court explained that, as a result, the challenge was not preserved. Utah law permits an argument to be raised for the first time in a new trial motion, but if the trial court does not reach the merits, including if the court finds the issue waived, then it is not preserved for appeal. The appellate court proceeded to examine the argument under Utah's plain error doctrine and ruled that the higher showing required for plain error had not been made.

Could the defendant have done something to nudge the trial court to address the merits of the limitations argument? We cannot know. We can suggest that if appellate counsel is participating at the post-trial stage and appreciates the need for the trial court to reach an otherwise unpreserved error, there may be steps that counsel can take to improve the chances that the trial court does so.

Practice Tip

When preparing post-trial motions, involve appellate counsel, who can assess the jurisdiction's preservation rules. If a point is being raised for the first time in post-trial motions and the trial court must reach its merits for it to be preserved for appeal, then appellate counsel should assist in crafting and presenting the argument in the manner that maximizes the chances that the trial court does so.

©2011-2020 Carlton Fields, P.A. National Law Review, Volume IX, Number 108


About this Author

Matthew J. Conigliaro litigation lawyer Carlton Fields

Matt Conigliaro concentrates his practice on appellate and complex commercial litigation. His work principally involves complex commercial and tort litigation, health care and products litigation, insurance coverage, intellectual property, and constitutional litigation.

Matt originally joined the firm in 1997. He left in October 2001 to serve as a Deputy Solicitor General of Florida, where he participated in litigating the State's most significant appeals, and returned to the firm in December 2002.

Matt is board certified in Appellate Practice by The...

Nicholas A. Brown, Carlton Fields, Trial lawyer

Nick Brown’s practice focuses on appeals and trial support in state and federal courts. He also serves as the reporter for the Florida Supreme Court Committee on Standard Jury Instructions in Civil Cases, which allows him to keep abreast of hot issues working through Florida’s appellate and trial courts.

At the appellate level, Nick handles all aspects of appeals, from early case assessments and evaluations of appellate issues, to motions practice and briefing, to presenting oral argument. He also consults on strategic matters to assist other attorneys both inside and outside Carlton Fields in selecting and refining issues that will best resonate with the appellate court, including conducting mock court sessions.

At the trial level, Nick develops and presents dispositive motions, prepares jury instructions, handles charge conferences, and provides legal support for the purpose of preserving claims of error. He is a regular contributor to the firm’s I Object! blog, which focuses on preservation of error at trial.

Nick’s areas of concentration include complex commercial and tort litigation, insurance coverage disputes, real property litigation, and consumer finance, all at both the trial and appellate level. He is an active member in the firm’s data privacy and cybersecurity task force as well as its e-discovery task force. Nick is also dedicated to providing pro bono legal services to ensure access to the justice system.