This article originally appeared in the Daily Journal on August 27, 2018.
If you lose a trial or dispositive ruling, your first instinct may be to file a post-trial motion. No doubt, objections to statements of decision, new trial motions, JNOVs, and motions for judgment as a matter of law can be useful tools for relief when the trial court simply missed something critical the first time around or a jury clearly blew it.
Their most common purpose, however, is preserving issues for appeal. If a trial judge’s written dispositive order doesn’t address a key issue of contention, is ambiguous in its factual findings, or doesn’t match what the judge said in court, objections may be the only way to get the mistake into the record. Or if you need to preserve an issue for appeal that wasn’t fully fleshed out earlier on, have found evidence of juror bias or misconduct, or want to challenge the amount of damages awarded by a judge or jury, then a timely new trial motion may be essential.
But if you don’t need to preserve an issue and the court didn’t miss anything major, it can be a mistake to bring a post-trial motion without thinking strategically first. While it may feel like an opportunity to urge your cause one last time and persuade the judge that you were right all along, if you’re essentially just repeating arguments and evidence you’ve already presented, your chances of success are probably pretty small. Worse, you might end up inadvertently weakening your position on appeal.
If you’re in that situation, you should start by asking yourself a hard question: Is there any realistic chance the judge is going to change his or her mind? Sometimes, the answer may truly be yes, but much of the time, the answer will be probably not. Once complex litigation has reached a final ruling, especially if it turns on a legal question or follows a bench trial, many judges will have an established view of who should win and who should lose.
If you’re not sure whether that’s you, read between the lines of the opinion or order and think about how the judge acted in court. Did the judge say that your client has no credibility or acted in bad faith? Did he or she resolve every disputed question against you or offer multiple, alternative reasons for finding for your opponent? If the judge seemed to be paying attention, and the opinion at least correctly states the relevant facts and case law, it signals the judge acted purposefully in the ruling and isn’t likely to be swayed by a post-trial motion raising law and facts you already presented — no matter how impassioned you or your client feel.
If you take this kind of hard look at the decision and conclude the judge is not likely to be persuaded to change his or her mind, then it means your post-trial motion could come with a new risk: you could accidentally educate the judge on ways to strengthen the ruling against appellate attack.
Did the judge forget to discuss one of five factors that applied to your case, but found all four she discussed against you? A post-trial motion might just give the judge a chance to decide the fifth factor against you too, rather than allow you to argue on appeal that the she incorrectly applied the test. Was there authority the court didn’t distinguish, or a key fact it didn’t mention? Unless you really think there’s a chance the trial judge will find that authority or fact to be such a game-changer that he’ll toss aside all the time he’s put in to his ruling and start over — a tough proposition for overworked judges — you might be better off keeping your powder dry for appeal and arguing that the careless judge didn’t even discuss the important case law and dispositive facts you cited.
Likewise, if you’re filing objections to a statement of decision, don’t make the mistake of simply submitting a list of errors you think the trial court made, a surprisingly common practice. Objections are for major issues the court failed to address at all, problems with the form of a decision like an ambiguous factual finding, or clerical errors such as a written order that incorrectly states the oral ruling. They’re not for substantive disagreements with the court’s conclusions and reasoning, which belong to other post-trial motions. If you give the judge an easy list of everything you think she got wrong, there’s a decent chance she’ll just hold it up to the decision and strengthen the ruling wherever needed. In that case, all you’ve done is give the trial court an easy map to insulate the decision from appellate critique.
An impression of trial court sloppiness is not such a bad thing for an appellant on appeal. If the decision comes across as slapdash with authority, perhaps let it remain that way. Factual findings that the trial court forgot to make are harder for your opponent to use against you on appeal than ones you reminded the judge to issue post-trial, especially if you clearly requested a ruling on the disputed facts at the outset.
So, if you need to file a post-trial motion to preserve an issue or raise a problem that you can’t raise later on, then definitely do it (and be sure to meet all the tricky timing requirements that may apply). But if not, it’s worth carefully questioning whether to file one at all, even if there are gaps in the trial court’s ruling or reasoning. Just because you can do a thing doesn’t mean you necessarily should.
Of course, if you aren’t sure, you can always call your friendly neighborhood appellate lawyer to help guide you to the right decision.
Ben Feuer is the chairman of California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco and Los Angeles. He handles civil and business appeals in the 9th Circuit and California Courts of Appeal. You can email him at email@example.com or find him at www.calapplaw.com. Appellate Zealots is a monthly column on appellate issues and recent appellate decisions written by the attorneys of the California Appellate Law Group LLP.
*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.
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