Category Archives: Preservation of Error

CA10: Affirmative withdrawal of challenge to presentence report is a waiver

by Emil J. Kiehne Posted on October 29, 2019

Defendant, Brice Ashton Carter, was convicted of possessing a firearm as a felon. A confidential informant told federal agents that Carter had used two firearms as payment for some methamphetamine. Relying on the informant’s statements, the presentence investigation report applied … Continue reading →

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NMCA: Employer’s mistaken belief that worker was disabled supported discrimination claim

by Emil J. Kiehne Posted on August 2, 2019

In Goodman v. OS Restaurant Services, LLC (opinion by Judge Hanisee), the Court of Appeals has held that sufficient evidence supported a jury’s verdict that an employer mistakenly “regarded” the plaintiff worker as disabled, and discriminated against him because of … Continue reading →

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10th Circuit: BLM not entitled to key to inspect well sites on private land

by Emil J. Kiehne Posted on January 22, 2019

In Maralex Resources, Inc. v. Barnhardt, the Tenth Circuit reversed a district court’s order that had granted the Bureau of Land Management (BLM) authority to require a private landowner to provide it with a key to access and inspect oil and gas wells. Although … Continue reading →

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Check out the (relatively) new appellate blog, “I Object!”

by Emil J. Kiehne Posted on May 18, 2015

I recently learned of the very helpful I Object! A Blog on Preservation of Error, which was started in October 2014 by the Florida law firm of Carlton Fields Jorden Burt. As the name implies, the blog addresses the finer points of … Continue reading →

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DWI lawyer Ron Bell prevails on appeal in his own DWI case

by Emil J. Kiehne Posted on September 11, 2014

Virtually everyone in Albuquerque has seen Ron Bell’s billboards and television commercials proclaiming his willingness to sue malefactors of all sorts; many of these include his catchphrase “I sue drunk drivers!” So some people experienced a fair amount of schadenfreude when Mr. Bell was arrested for … Continue reading →

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“It is enough to present a defense; harping on it is not required.”

by Emil J. Kiehne Posted on September 10, 2014

I thought you might enjoy this quote from Judge Frank Easterbrook’s opinion in Jentz v. ConAgra Foods, Inc. (7th Cir., Sept. 9, 2014), at page 6. Judge Easterbrook was responding to an appellee who argued that the defendant did not “feature” a particular defense … Continue reading →

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Watch those verdict forms, says Tenth Circuit

by Emil J. Kiehne Posted on August 20, 2013

As an appellate lawyer, I have a continuing (and probably unhealthy) obsession with verdict forms. Just like any other jury instruction, they can make or break your appeal. So it’s important to know when you must object to them, and … Continue reading →

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NM Supreme Court reaffirms right of non-English speakers to serve on juries

by Emil J. Kiehne Posted on August 13, 2013

One of today’s headlines at Drudge Report is “You can serve on jury even if you don’t understand english” (sic), referring to yesterday’s decision by the New Mexico Supreme Court in State v. Samora, which reaffirmed that proposition. Juror service … Continue reading →

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“You Forgot to Swear In the Jury? No Prob”

by Emil J. Kiehne Posted on September 3, 2012

Joe Palazzolo has this report from the Wall Street Journal’s Law Blog about the Tenth Circuit’s decision in United States v. Turrietta, which reinforces the lesson that a lawyer usually cannot sit by while error occurs and successfuly take advantage of it later.  What makes … Continue reading →

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