1. Snatch victory from the jaws of defeat. A new trial motion gives the trial judge a chance to cut the jury’s punitive verdict, eliminate it altogether, or grant a new trial. A successful motion for judgment notwithstanding the verdict (JNOV) – known as JMOL in federal court – lets the trial judge declare the party who lost at trial the winner. These motions can be powerful tools for defendants, particularly useful in cases of large punitive awards. The trial judge has considerable power to reduce an excessive verdict or order a new trial.
2. Preserve issues/avoid waiver for appeal. In many states, a defendant who lost at trial must raise certain issues by way of a post-trial motion in order to preserve the right to raise that issue on appeal. That is increasingly true of punitive damage verdicts the defendant believes are excessive under federal constitutional law. A growing number of courts around the country are concluding that an excessiveness challenge may only be raised on appeal if the defendant has first filed a new trial motion on that ground.
3. Create a record for appeal. The cardinal rule of appellate practice is: if it’s not in the record, it doesn’t count. (See Ch. 2A, Imre & Schiavelli, Preserving the Record for Appeal, California Civil Appellate Practice (CEB 2005). Often, filing a post-trial motion is the only way to get a critical fact, issue or error into the record. Otherwise, the appellate court probably won’t not consider it, even if it wanted to.
4. Strategic advantages. Defendant’s settlement leverage is usually at its lowest point just after the jury has rendered a large verdict. Many plaintiffs consider a judgment, however exorbitant, to be “money in the bank.” Strong, tightly-constructed post-trial motions can help bring the opponent back down to earth, forcing plaintiffs’ counsel to confront the weaknesses in his or her case. And often, a post-trial motion serves a secondary strategic purpose: to get a preview of plaintiff’s arguments on appeal. This can provide a distinct tactical advantage when it comes to preparing the first appellate brief.