Appellate Insights

Lawyers who’ve just lost a jury trial often ask whether they need to file a new trial motion before appealing.  The answer is case-specific, but there are a few arguments that should almost always be raised via a new trial motion if the record supports them.  They include:

• Inadequate or excessive damages. Failing to raise this claim in a new trial motion forfeits it on appeal, if ascertaining the amount of damages requires resolving evidentiary conflicts or witness credibility.
• Juror misconduct. Juror misconduct discovered after the verdict must be demonstrated through affidavits; a new trial motion is the way to get them into the appellate record.
• Closing argument misconduct absent a timely objection. The trial court has discretion to overlook the lack of a timely objection, if counsel moves for a new trial.  The motion also is essential to preserve the issue for appellate review.
• Witness credibility/weight of evidence. The trial court can independently assess witness credibility and reweigh the evidence, but the Court of Appeal has no such power—on a sufficiency of the evidence challenge, it must draw all inferences in favor of the judgment and affirm if there is any substantial evidence to support it.

►  The practical message:  Make sure someone on your trial team has an eye out for potential issues that must be raised in a new trial motion before the case heads to the Court of Appeal.