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32:1. Post-Trial Motions Generally, Fundamentals of Litigation Practice 32:1 (2012 ed.)

Fundamentals of Litigation Practice 32:1 (2012 ed.) Fundamentals of Litigation Practice Database updated August 2012 David F. Herr, Roger S. Haydock, Jeffrey W. Stempel Part 6. Post-Trial Motions and Appeals Chapter 32. Post-trial Motions 32:1. Post-Trial Motions Generally As trial is concluded, either the court has made findings or the jury has returned a verdict. In the majority of cases, although the trial result ends one phase of the case, there is frequently a post-trial motion phase of the case. Post-trial motions are diverse in nature and purpose, and may be brought by either side of the case. They may seek to accomplish several things. The most common postrial motionswhich are the subject of this Chapterare those where the losing party seeks to reverse the trial result, changing defeat into victory (or at least reopening the imperfect case with another opportunity to try for a better result). These motions have two potential purposes: they may actually prompt the trial court to change the result, but more often they are filed in order to permit the broadest review on appeal. Chapters 30 and 31 address the common post-trial motions or actions by victorious trial litigants, such as seeking counsel fees, taxing costs, and adding interest to the judgment. In addition, Chapter 30 addresses motions to vacate, alter, amend, or correct a judgment. A prevailing party may also file post-trial motions, seeking to pile on additional claims. For example, the victor might seek taxation of costs disbursements, the recovery of attorneys fees, or the award of prejudgment interest, or may seek to assist in enforcing the judgment recovered by the victor. Either side may seek to supplement the record in some way or give the trial court a chance to rule on something in a new way in view of the trial result. Many postrial motions are brought not because the moving party has any real hope for success, but because the appellate courts require the motion in order to provide full review on appeal. The reflex for some lawyers is to bring a post-trial motion in every case. It may be that, at least in some situations, the losing party is better off taking an immediate appeal. For example, if one loses a jury verdict in a trial rife with erroneous and egregious evidence rulings, a motion for a new trial may only give the district judge an opportunity to set forth the judges version of reality, coloring the account of trial proceedings to make the rulings seem right or at least within the trial courts discretion. Even the most conscientious appeals panel will be inclined to defer to the trial judges narrative unless it is clearly contradicted by the record. In these cases, immediate appeal lets the movant set forth the facts in the manner most favorable to the movants cause. When the basis for appeal or posttrial motion is essentially legal, you know the likely trial court decision. It might even have been previously decided in a pretrial motion, leaving no reason to pin down the trial judges purportedly warped thinking. Filing a posttrial motion then only delays the righting of the wrong. Of course, if the unsuccessful party had a weak claim and will lose again in posttrial motions and again on appeal and again in petitioning for certiorari, the delay inherent in awaiting a posttrial motion accrues to the losers benefit by postponing the day of financial reckoning. Thats nice, but it is also unethical motion practice (see Section 23.5) unless counsel seriously views the motion as meritorious, which usually requires more than only a ghost of a chance for success. Posttrial motions are not limited to attacking the core decision on the merits of the controversy. A motion can attack the nature of the relief awarded, the amount of damages, or portions of a written opinion not essential to the holding, and may press a particular point of procedural or substantive law not so much to change the result of the instant case as to establish useful (or less harmful) precedent for the future. For example, a manufacturer stung by a million-dollar plaintiffs verdict 2013 Thomson Reuters. No claim to original U.S. Government Works. 1

may move for a new trial because evidence of a subsequent change in the manufacturing process was admitted into evidence. In denying the motion, the court may agree that it should have excluded the evidence but deny a new trial because of the other overwhelming evidence against the defendant in this case. When all else fails, courts find harmless error a great source of refuge. Nonetheless, the hypothetical defendant-movant-manufacturer has lost the battle but potentially won part of the war in future cases where exclusion of the tainted evidence will tip cases in its favor. The 2002 Amendments to the Rules of Civil Procedure eliminated the former requirement that judgments regarding counsel fees be entered on a separate piece of paper. Rule 58 now provides that final orders pursuant to Rules 50(b), 52(b), 54(d), (2) (B), 59, or 60 need not be entered on a separate document. Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.
End of Document 2013 Thomson Reuters. No claim to original U.S. Government Works.