Preserving Error at Trial: Objections, Offers of Proof, and the Rule 50 Trap

Elisabeth C. Arko, Partner | Tucker Ellis LLP

Elisabeth C. Arko has served as appellate counsel in multiple state and federal trials, working with trial teams on dispositive motions, jury instructions, and post-verdict motions so that issues are preserved for appeal. She is the author of “Preservation of Error in Ohio: Waiver Beware,” published in the OACTA Quarterly Review (Spring 2022), and co-chairs the Appellate Advocacy Committee of the Ohio Association of Civil Trial Attorneys. Her practice at Tucker Ellis spans complex litigation and appeals, including hospitality and product liability defense, across every phase from consultation and dispositive motions through trial and appeal.

• Education & Credentials

She earned her J.D., summa cum laude, from Cleveland State University College of Law in 2016, where she was Editor-in-Chief of the Cleveland State Law Review, and her B.A. from Ashland University in 2011 as an Ashbrook Scholar. She was admitted in Ohio in 2016 and is admitted to the U.S. Courts of Appeals for the Sixth, Seventh, Ninth, and Eleventh Circuits and the U.S. District Courts for the Eastern District of Michigan and the Northern and Southern Districts of Ohio.

• Recognition & Leadership

The Ohio Association of Civil Trial Attorneys presented her with its Outstanding Young Lawyer Award in 2024. She has been named to Best Lawyers: Ones to Watch in America each year from 2023 through 2026 and to Ohio Super Lawyers Rising Stars in 2025 and 2026. Within OACTA she sits on the Board of Trustees (2024–present), chaired the 2022 Annual Meeting, and co-chairs both the Appellate Advocacy Committee and the Amicus Committee.

• Professional Involvement

She presented “Reptile Theory in Appellate Courts” at the OACTA Annual Meeting in November 2024 and moderated “Back to the Courtroom: What We Can Expect from Courts Moving Forward” at the 2022 Annual Meeting. She has delivered the Supreme Court term-in-review session at the Tucker Ellis In-House Counsel Summit each year since 2021, most recently “SCOTUS for In-House Counsel: What Changed, What Matters, What’s Next” in October 2026. She also participates in the Cleveland Metropolitan Bar Association’s 3Rs Program.

• Experience

She was lead appellate counsel in three RICO, negligence, and TVPRA cases against a hotel brand and operator, all resolved before verdict, and co-appellate counsel for a corporate client in a toxic tort case tried to verdict in the Lorain County Court of Common Pleas. She has argued appeals in the Ohio Eighth, Tenth, Seventh, and Ninth District Courts of Appeals and the Michigan Court of Appeals, and has handled briefing in the Sixth, Seventh, and Eleventh Circuits and in state appellate courts in Michigan, Illinois, Pennsylvania, New York, and Georgia. Her publications include “Understanding Labor Trafficking Laws as Litigation Surges” (Westlaw Today, August 2025) and articles in DRI’s For The Defense.

Monica E. Gaudioso, Partner | Carrington, Coleman, Sloman & Blumenthal, LLP

Monica E. Gaudioso is a commercial litigator who tries and arbitrates disputes in state and federal courts on both the plaintiff and defense sides. She began her career as law clerk to the Hon. Samuel H. Mays, Jr. of the U.S. District Court for the Western District of Tennessee (2013–14), where she managed the civil docket and prepared court documents in securities, complex commercial, employment discrimination, and First Amendment appeal matters, and she then spent four years as a litigation associate handling pre-trial discovery and second-chairing trials and arbitrations.

• Education & Credentials

She earned her J.D. from The University of Texas at Austin School of Law in 2013, where she served as an Article Editor of the Texas Law Review, and her B.A. in History from Rhodes College in 2010. Immediately after law school she clerked for the Hon. Samuel H. Mays, Jr. of the U.S. District Court for the Western District of Tennessee (2013–14). She has been licensed in Texas since 2013 and is admitted to practice before the U.S. District Courts for the Eastern, Northern, Southern, and Western Districts of Texas.

• Recognition & Leadership

Best Lawyers has listed her among its Ones to Watch in Appellate Practice, Commercial Litigation, and Labor and Employment Litigation every year from 2021 through 2025, and Lawdragon 500 named her a Leading Litigator in America for Commercial Litigation in 2024 and 2025. She was recognized in the Legal 500 US City Elite for Dallas in 2025, named a Texas Rising Star by Super Lawyers in 2023, and listed among Attorney Intel’s Top 25 Blockchain and Digital Assets Attorneys in 2025. She is a Fellow of the Dallas Association of Young Lawyers Foundation.

• Professional Involvement

She is a member of the State Bar of Texas, the Dallas Bar Association, and the Dallas Association of Young Lawyers, and is a Fellow of the Dallas Association of Young Lawyers Foundation. From 2019 to 2021 she was a member of the Patrick E. Higginbotham Inn of Court. Her firm lists her in both its Litigation, Disputes, Appeals and Technology & Innovation groups, and she speaks on the technology side of her practice: she appeared on the Texas Blockchain Council’s Block-Cast podcast in July 2024 to discuss the intersection of DAOs, digital assets, and AI, and on Access Tribe’s Bitcoin education podcast in July 2023, where the discussion covered Coinbase, the SEC, and Bitcoin in Texas.

• Experience

Her practice runs the full length of a commercial dispute, from the pre-litigation demand through discovery and motion practice to trial, on both the plaintiff and defense sides. She has appeared as counsel of record in federal matters in the U.S. District Courts for the Western District of Missouri, the Southern District of Texas, and the Central District of California, including a RICO action, a patent case, and a contract dispute, and she represents financial services, technology, and blockchain and cryptocurrency clients in state and federal courts. Her matters include business ownership disputes, director-and-officer litigation, shareholder litigation, breach of contract and fraud claims, and trade-secret misappropriation, resolved through discovery, trial, and arbitration.

Douglas S. Lang, Senior Counsel (Justice, Fmr.) | Carrington, Coleman, Sloman & Blumenthal, LLP

Douglas S. Lang advises on litigation and appellate strategy, works alongside trial lawyers, and argues appeals in jurisdictions across the country. He returned to private practice after more than sixteen years on the Fifth District Court of Appeals in Dallas, where he authored more than 2,100 opinions and took part in deciding more than 6,100 cases. He co-hosts the Appealing Strategies podcast, whose recent episodes include “Waivers, Rule 50, and Appeals: How Missing a Motion Can Cost You the Verdict” and “Preserving Error for Appeal in Federal Courts: Lessons from Clapper v. American Realty Investors.”

• Education & Credentials

He earned his J.D. from the University of Missouri School of Law and his B.S.B.A. from Drake University, where he competed on athletic scholarship and lettered in football and wrestling, and he later completed a Graduate Certificate in Theological Studies at the University of Dallas. He is licensed in Texas and Missouri and admitted to the U.S. Courts of Appeals for the Fifth and Sixth Circuits, the U.S. District Courts for the Eastern, Northern, and Western Districts of Texas, and the Supreme Court of the United States.

• Recognition & Leadership

The Texas Bar Foundation presented him with its Outstanding 50 Year Lawyer Award in 2024, and Texas Lawyer named him a Texas Trailblazer in 2019. Appointed by the Supreme Court of Texas to the State Commission on Judicial Conduct, he served from 2013 to 2018, including as Vice Chair, Secretary, and ultimately Chair from 2017 to 2018, and he sat for six years on the Texas Multi-District Litigation Panel. Earlier honors include the State Bar of Texas Presidents’ Award (2010), the Dallas Bar Association’s Morris Harrell Professionalism Award (2007) and President’s Citation (2018), and the Texas Bar Foundation’s Lola Wright Foundation Award (2007).

• Professional Involvement

He serves on the Council of the Dallas Bar Association’s Appellate Law Section (2024–2025) and has been a member of the American Law Institute since 2004. A past President of the Dallas Bar Association (1991) and past Chair of the Dallas Bar Foundation (1998–2001), he also led the National Conference of Bar Presidents of the American Bar Association (2004–2005) and chaired the Texas Center for Legal Ethics and Professionalism (1999–2002). He founded the American Inns of Court Trial Academy, teaches as an Adjunct Professor at SMU Dedman School of Law (2023–present), and sat on the Editorial Board of The Federal Lawyer in 2023.

• Experience

His current practice centers on appellate strategy from the trial court forward, and he has most recently represented clients before the Supreme Court of Texas and the U.S. Court of Appeals for the Fifth Circuit, with earlier appearances in Texas state and federal courts, the federal circuit courts, and the Supreme Court of the United States. His sixteen years on a thirteen-judge intermediate appellate court inform how he approaches the trial record. His writing includes “Survey of Recent Mandamus Decisions of the Texas Supreme Court,” 10 SMU Annual Texas Survey 99 (2024), and “Wherefore Art Thou Civility?” in Texas Lawyer (September 2024).

SESSION 1 – Where Civil Trial Lawyers Waive Appellate Error | Douglas S. Lang & Monica E. Gaudioso | 12:00pm – 1:00pm

This session walks through the preservation failures that most often cost civil trial lawyers appellate review in federal court, pairing each trap with controlling authority and the practical mechanics for closing it. Attorneys will learn how FRCP 50, FRCP 51, and FRE 103 interact to create waiver at the evidentiary, charge, verdict, and post-trial stages, and what Dupree v. Younger changed about what must be renewed after trial. Attendees leave with a working checklist for spotting and closing preservation gaps while the trial court still has the power to fix them.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Making the Record Under Fire: Real-Time Preservation in a Hostile Courtroom | Elisabeth C. Arko | 1:10pm – 2:10pm

This session teaches civil trial attorneys how to execute error preservation in real time under adverse courtroom conditions — a fast-moving docket, a judge who truncates argument, unrecorded sidebars, and the constant risk of forfeiture through procedural misstep. Attorneys will learn the mechanics of FRE 103, the motion in limine preservation trap, offers of proof under pressure, continuing objections, and jury instruction preservation. Attendees leave with specific techniques for building an appellate record that can be read, verified, and relied upon.