chapter 19 nineteen post trial procedures civ lit 2nd

Civil Litigation:Process and Procedures

Chapter NineteenPosttrial Procedures

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.2

Termination of Litigation Motion for judgment on the

pleadings Motion for summary judgment Default judgment Settlement & waiver or dismissal Bench trial verdict Jury verdict Final appellate ruling




At the Outset of Litigation Motion for judgment on the

pleadings Claim of judgment as a matter of law Considers all the pleadings, finds no

material fact in controversy Motion for summary judgment

Similar claim of a right to judgment as a matter of law, no disputed facts

The court can go off the pleading & consider other materials, such as discovery documents




Default and Verdict Default judgment may be

entered upon the request of the π if the Δ fails to answer & defend the lawsuit

A verdict is the decision of the jury resulting in a determination of liability and/or damages




Entry of Judgment The outcome is entered on the

docket of the court The date of entry is the starting date

for time limits on post-trial proceedings

This gives public notice of the trial results

The judge may orally enter the judgment or may require a written order, prepared in advance




Entry of Judgment Form




Trial Errors Once judgment is entered, post-trial relief must

be considered Losing party will review the trial for errors

(paralegal’s trial notes help here) Winning party may consider appealing the

amount of the win Appealable error may be based on the claim that

the verdict is unsupported by the evidence The claim may be that the judge erred in

admission of evidence and/or jury instructions




Evidentiary Error Appeal is based on the judge’s decision to

admit or exclude evidence May be based on the type of evidence,

e.g., hearsay, or the failure to properly authenticate evidence

The appealing attorney must have objected at the time

This preserves the record for appeal by bringing the alleged error to the judge’s attention while there is still time to “cure” it




Jury Instructions The legal team prepares proposed

jury instructions & submits them to the judge – pretrial conference, supported by a memorandum of law

The judge (trier of law) determines which ones are the proper statement of the law

The judge tells the jury what law to apply to the facts they determine




Verdict Unsupported by the Evidence Jury error

Fails to properly consider the evidence

Misapplies the law May have made an emotional

response to the evidence, rather than an objective analysis

Not the same as finding one side more credible than the other




Harmless Error To be the foundation for an appeal,

the appealable error must Have resulted in harm or prejudice to

the appellant Be severe enough to have altered the

outcome of the trial Harmless error is a trial error that

did not affect the outcome of the trial




Clear Error Parts & Elec. Motors, Inc. v. Sterling Elec., Inc.,

866 F.2d 228 (7th Cir. 1988)

“[T]o be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must, as one member of this court recently stated during oral argument, strike us as wrong with the force of a five-week old, unrefrigerated dead fish.”




Motion for Judgment as a Matter of Law

Also, judgment notwithstanding the verdict, or judgment n.o.v. (non obstante veredicto)

“No reasonable minds could disagree,” and yet the jury found Contrary to the weight of the evidence In the absence of contradictory evidence

Judge renders a judgment contrary to the jury’s verdict, as a matter of law




Motion for a New Trial

Made to the trial judge, instead of an appeal

An error was made during trial By the judge or jury So prejudicial that it constitutes a denial

of justice It is not clear that the other side

would win, so a new trial (with the error corrected) is required




Motion to Mold the Verdict Asks the judge to recalculate the

amount of damages determined by the jury Remittitur – damages found were

beyond the scope of evidence or damages claimed, and the Δ is entitled to a reduction in the amount awarded

Additur – although the π “won,” the damages awarded did not correspond to undisputed evidence of damages




Local Rules Some jurisdictions require a review

of the judgment before it is final and appealable

Judges, frequently 3, sit en banc for the review

Some jurisdictions require that a bench decision be accompanied by findings of fact & law before it is final




Allowable Costs Federal Rule 54 permits the

prevailing party be allowed costs 28 U.S.C. 1920 specifies

Fees of clerk, marshal, court-appointed experts, witnesses, interpreters

Court reporter fees for parts of the transcript required by the trial, printing, copies of necessary papers, docket fees, other interpretation service fees




Appeal Right to appeal to an intermediate

appellate court (unless there is none in that jurisdiction – then to high court)

Governed by rules of appellate procedure

Final judgment required Not interlocutory, or interim, except

rarely A decision that allocates the

responsibility




Appellate Procedures Appellant files a notice of appeal

May include several issues (shotgun) May concentrate on a single issue

(rifle) Other side may file a cross-appeal

if not entirely satisfies (won, but not enough damages awarded)

Must consider federal or state rules & local court rules for format, timing




Appellate Rules May need to research, particularly

in a foreign jurisdiction (local rules may vary from district to district within a state)

Comply fully to avoid having the appeal quashed (dismissed) Margins & stapling Weight, color & size of paper, cover Type fonts & size, etc.




Notice of Appeal Federal requirement

Clerk of district court 30 days from entry of judgment,

unless there are post-trial motions pending

Can ask for an extension if there is a reasonable basis for the request




Notice of Appeal Format




Record on Appeal The appellant assembles the

record for appeal, provided to the clerk of court Original papers (pleadings, motions,

briefs, etc.) & exhibits Certified copy of the docket entries Pertinent portions of the trial

transcript The clerk of court will forward the

record to the court of appeals




Trial Transcript The appellant orders a transcript of

the trial, or specific portions, pays for it & includes it in the record

The appellee will review the sections ordered & may order additional sections for context

The court reporter has 30 days (fed.) to submit the transcript to the clerk




Scheduling Order Some circuits permit the clerk of

court to issue a scheduling order Sets out the timelines for

Completion of the record (including supplements)

Briefs Oral arguments Other requests, motions




Appellate Briefs

Written arguments setting forth The error claimed The legal authority relied upon

Brief components are generally Cover, Table of Contents, Table of

Authorities Facts & allegation of jurisdiction Issues presented & short answer Argument & conclusion Appendix & Certificate of Service




Paralegal Role Check all applicable rules for

Format & contents Deadlines (calendar reminders) Page limitations, number of copies

required Draft portions of the brief

(generally not the argument) Assist in legal research, cite-

checking




Filing and Service Some jurisdictions require paper

copies Some courts permit electronic

service Parties agree to waive service of paper

copies Brief is in a specified native format (e.g.,

PDF) If on a portable storage device, it must

be well-labeled Completed Proof of Service still

required




Research and Writing Paralegals should be able to

perform basic legal research, from books or online Find cases, statutes, constitutional

provisions, regulations, court rules Locate pertinent secondary authority Properly cite, according to the rules of

the jurisdiction




Citation Checking Verifying citations to both the trial record

and legal authority Check that the cites are accurate by page, line,

paragraph and/or volume Check that they comply with the preferred

citation format for that court Check that quotations are accurate Determine that the reference actually stands

for the legal principle attributed to it Validate sources, to determine they are still

“good law”




Oral Arguments May not be required Attorneys are given the opportunity to

answer questions raised by the brief, but not simply repeat material

The attorney will attempt to illuminate the reasons for a positive decision

Paralegals may serve as “sounding boards” for these arguments, due to their familiarity with the case




Opinions of the Appellate Court The appellate panel (usually 3 judges)

will take the matter under advisement They will study the briefs, discuss the

oral arguments and confer before voting One judge will be assigned to write the

opinion of the court Concurring opinion – agrees with the

outcome, but not the reasoning of the majority

Dissenting opinion – disagrees with the outcome




Rulings of the Appellate Court Affirm – determines no error occurred,

and the lower court decision stands Reverse – rarely used, determines the

judgment was entered wrongly against the appellant, who should have won.

Remand – an error is found, but the case is sent back to the trial court to re-try the case with the error corrected to find out if the outcome will change




Highest Appellate Court Not all jurisdictions have a 3-tiered

system If there is a higher court (e.g., U.S.

Supreme Court), they may grant the right to hear an appeal from the intermediate court decision

Permissive, not an appeal of right Petition for a hearing May be granted (such as the federal

grant of certiorari)




Alternate Dispute Resolution Settlement is possible even after a

judgment has been entered Avoid post-trial motions & delays Avoid the time & expense of appeal

The losing party may offer an immediate payment, or better-structured payment, of a smaller amount than the judgment

chapter 19 nineteen post trial procedures civ lit 2nd

Documents

pearson education

upper saddle river

verdict default judgment

judgment contrary

trial judge

evidence jury error

advancecivil litigation

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