Preserving Error for Appeal in Federal Courts: Lessons from Clapper v. American Realty Investors

In this episode, Douglas Lang and Booker T. Shaw are joined by Katie Kraft, partner and co-chair of Thompson Coburn's U.S. Supreme Court practice. The discussion centers on the crucial concept of preserving error in the trial court to ensure that issues can be reviewed on appeal. Using the recent Fifth Circuit case, Clapper v. American Realty Investors, Inc., they unravel the importance of making timely and specific objections at trial, the distinction between waiver and forfeiture of rights, and the rare circumstances under which appellate courts may address unpreserved errors.

The panel analyzes the dramatic facts of Clapper, where egregious conduct and improper arguments by defense counsel during closing statements became central to the appeal. They examine why preservation matters not only at the appellate level but also for Supreme Court consideration, and outline the correct steps for lawyers: making precise objections, seeking appropriate corrective measures (such as mistrials), and demonstrating substantive harm when necessary.

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