Chapter 19 nineteen post trial procedures civ lit 2nd

Civil Litigation:
Process and Procedures

Chapter Nineteen
Posttrial Procedures

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

Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 2

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

Goldman/Hughes 3

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

Goldman/Hughes 4

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

Goldman/Hughes 5

Entry of Judgment Form

Goldman/Hughes 6

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

Goldman/Hughes 7

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
Goldman/Hughes 8

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

Goldman/Hughes 9

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
Goldman/Hughes 10

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

Goldman/Hughes 11

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.”

Goldman/Hughes 12

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
Goldman/Hughes 13

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
Goldman/Hughes 14

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

Goldman/Hughes 15

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
Goldman/Hughes 16

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
Goldman/Hughes 17

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
Goldman/Hughes 18

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
Goldman/Hughes 19

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.

Goldman/Hughes 20

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

Goldman/Hughes 21

Notice of Appeal Format

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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

Goldman/Hughes 23

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
Goldman/Hughes 24

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

Goldman/Hughes 25

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
Goldman/Hughes 26

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

Goldman/Hughes 27

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

Goldman/Hughes 28

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

Goldman/Hughes 29

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”
Goldman/Hughes 30

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
Goldman/Hughes 31

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

Goldman/Hughes 32

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

Goldman/Hughes 33

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)
Goldman/Hughes 34

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
Goldman/Hughes 35

Chapter 19 nineteen post trial procedures civ lit 2nd

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