Post-trial Motions

• Publication year: 1995
• Pages: 48

Post-Trial Motions Vol. 8 No. 9 Pg. 48 Utah Bar Journal November, 1995

H. James Clegg, J.

For most of us, post-trial motion practice is far less exciting than the trial itself. Usually the movant is the losing party at trial and faces an uphill battle to snatch victory, or at least a second chance, from the jaws of defeat. In addition to the presumptions favoring the jury verdict, one must battle the inertia of the trial court's mind; in their hearts trial judges don't really want to retry cases any more than you want to read a novel twice. In the first place, they rationalize that a litigant is not entitled to a perfect trial, only a fair one. Secondly, their calendars are already packed with new cases for trial and don't allow a lot of room for re-trials. Lastly, as with summary judgment motions, they know that it is hard to sustain an award of new trial or JNOV and appellate courts are likely to question their sanity for having tolerated such foolishness and making them work.

Thus, the movant generally has hat-in-hand and heart-in-throat when he or she argues a post-trial motion.

RULE 54(D)(2) MOTION FOR AWARD OF ATTORNEYS' FEES

The exception is when the successful party moves for award of attorneys' fees. Be aware that the federal rule requires that attorneys' fees issues be handled by post-trial motion unless substantive law permits their resolution at trial. Such a motion must be filed within fourteen days after entry of judgment and state the amount of fees claimed and the fee basis. While the losing party may challenge the right to recover fees or the amount to be awarded, local rule can permit dispensing with extensive evidentiary hearings; further, the issue may be referred to a magistrate or special master for resolution.

Although the state court rule does not contain similar language, the practice is similar in streamlining the evidence.

The wise lawyer expressly reserves fee issues by jury instruction so there is no question that the jury did not include them in its verdict.

RULE 59 NEW TRIAL, AMENDMENT OF JUDGMENT

The wording of post-trial motion rules differs between the state and federal versions. While I have not reviewed the history of the divergence, the practitioner should carefully review the pertinent rule before filing a post-trial motion. Note that Rule 59, U.R.C.P., is much more detailed than the federal rule and gives only the following grounds for new trial or amendment of judgment:^[1]

1. IRREGULARITY IN PROCEEDINGS BY WHICH A PARTY WAS PREVENTED FROM HAVING A FAIR TRIAL.

2. JURY MISCONDUCT: COERCION OF JUROR, RESORT TO CHANCE, BRIBERY.

Jury misconduct may be proven by affidavit of any one juror, but opposing affidavits may also be received. Any juror who gives an affidavit is subject to oral cross-examination or examination by the court.

A jury's verdict may be impeached only by showing of bribery or resort to chance. Misunderstanding of the law, confusion or the disregarding of facts or law are insufficient, even if proven, to undermine the jury process.^[2]

In state courts, a quotient verdict is impeachable as one based on chance.^[3] Federal courts do not so hold. Chief Judge Winder, for one, refuses to give the state court instruction against quotient verdicts and I had one case...