The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Why File A Post-Trial Motion?

By on Posted in Key Posts, Punitive Damages

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. 

What To Do When Judgment Is Entered Against You

By on Posted in Key Posts

STAY ENFORCEMENT OF THE JUDGMENT. After the jury renders its verdict, there are still many lines of defense available, including post-trial motions and appeal. First and foremost, the defendant must protect itself from immediate execution of the judgment, which, in many jurisdictions is enforceable immediately or within a very short time. A stay may be available by stipulation, court order or, as a last resort, filing an appeal bond. Don’t delay. Time is short and the clock is ticking.

OBTAIN AN INVESTIGATOR. To help evaluate what issues to raise in a new trial motion, jurors should be interviewed as soon as possible. Defendant typically has a short period of time to identify possible new trial issues – such as juror misconduct – and obtain the supporting juror declarations. Thus, the investigator should be lined up and ready to proceed at the earliest possible time. Trial or appellate counsel should supervise the investigation closely, directing the activities, and personally draft any declarations needed. All declarations must be in proper evidentiary form and follow the state’s particular requirements concerning what evidence qualifies to impeach a verdict. (See, e.g., Cal. Evid. Code, §1150; see also Krouse v. Graham (1977) 19 Cal.3d 59.)

DECIDE AND MOVE QUICKLY ON MOTIONS. The deadlines for filing new trial and JNOV/JMOL motions are short, critical and complicated. That means the decision whether to proceed – and what issues to raise – must be made as soon as possible. Sometimes, to preserve an issue for appeal, a new trial or other motion MUST be made.

FIELDING PRESS CALLS. Anyone involved on behalf of the losing party should be briefed on the proper handling of press inquiries, including the potential legal significance of responses. Ideally, all questions should be referred to defendant’s public relations office or the attorney handling the post-trial motion. They should work together and communicate frequently. Exercise caution in answering questions, issuing statements and granting interviews. Remarks should be cleared with counsel first, especially while post-trial motions are pending or contemplated. Keep in mind that the trial judge still has the power to grant significant relief.

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