22.0 - I. Introduction

JurisdictionNew York

I. Introduction

“I respectfully move to set aside the verdict on all the grounds permitted under the N.Y. Civil Practice Law and Rules, and respectfully request 30 days within which to file the appropriate motions.” This is the usual incantation of the losing party’s attorney following the verdict. After this pro forma–sounding application is denied, as is usually the case, the attorney may be tempted to forgo his or her statutory right to file a written post-trial motion and proceed directly to an appeal. Counsel should resist the temptation. As discussed herein, the post-trial motion is an important remedy that should not be overlooked.

The post-trial motion is more than merely an opportunity for the unsuccessful party to take a first bite of the apple prior to appealing the judgment. It provides a party with its only chance to seek relief from the judge who has viewed the proceedings firsthand and who is in the best position to know whether an injustice occurred and whether a new trial is therefore warranted.

Unlike an appellate court, which reviews a printed trial record, a trial judge enjoys the unique perspective of having seen and heard the witnesses and having “been in the atmosphere of the trial.”3367 An improper remark or some conduct of counsel that might look innocent enough in the cold record might have had a devastating and prejudicial impact in the courtroom; a witness whose testimony looks credible in print might have spoken haltingly and nervously, refused to make eye contact, simply made a poor appearance or given other indications that perhaps he or she was not to be believed. Having witnessed the proceedings, an astute trial judge should have a strong sense of whether the...

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