Post-Trial Motions

1. Post-Trial Motions • Before Verdict • Judgment as a matter of law • After Verdict • Judgment notwithstanding the verdict • New trial • Increase or decrease damages • Standards of review • To reverse a jury’s verdict, the judge must believe that the jury was so unreasonable that no reasonable jury could have rendered the verdict that the jury did • All evidence must be reviewed in the light most favorable to the other party • If there’s an issue of fact that is unclear, the jury’s decision gets the benefit of the doubt as to that issue Advanced Civil Litigation Class 14

2. Post-Trial Motions: New Trial • Grounds • Mistakes by the trial judge in procedure (e.g., evidence issues) • Verdict against the weight of the evidence • Newly discovered evidence • Excessive or inadequate damages • Judges sometimes use this leverage to change the amount of an award • In a jury trial • Juries get more deference in deciding issues of fact from judges and appellate courts • In a non-jury trial • When the judge is a trier of fact, an appellate court will look at the grounds for the decision • But will still give some deference since the trial judge is in the best position to know the nuances of the case Advanced Civil Litigation Class 14

3. Judgment and Bill of Costs • Obtaining a judgment from the court • This is generally a formality and requires the party to prepare the judgment and submit it to the court for signature • Preparing a bill of costs • In many cases, the losing side must pay the winning sides costs • The winning side prepares a list of court costs, including: • Filing fees • Stenographer fees • Witness fees • The other side can object. Otherwise, the clerk enters it • Attorney fees are usually not recoverable, but are in some cases where a statute allows or where the judge thinks the case was frivolous Advanced Civil Litigation Class 14

4. Enforcing a Judgment • Key terms • Judgment creditor • Judgment debtor • Post-judgment interest (between judgment and payment) is recoverable • Pre-judgment interest is generally not recoverable • Lis Pendens • The plaintiff can seek to have property that is the subject of the proceeding attached pending trial • The judgment-proof debtor • Consider whether the debtor can afford to pay anything before trying to collect in the first place Advanced Civil Litigation Class 14

5. Locating the Judgment Creditor’s Assets • You need to gather info on debtor’s assets including: • What property is owned only by the debtor • Jointly owned property (may be protected) • Real Property in a different state or country • Methods by which to obtain this information include • Post-judgment interrogatory • post-trial request for production of documents • post-trial deposition • supplementary proceedings • Interrogatories in Aid of Judgment • Look into recent history of transfers to determine any fraudulent transfers that may have been made Advanced Civil Litigation Class 14

6. Collecting a Judgment • Supersedeas bond • This may be required of the debtor to secue a stay of execution of the judgment • First Letter to Judgment Debtor • Be firm, but not nasty • Offer a chance to call to settle • Make sure to include appropriate contact info • Describe legal action that will be taken in response to failure to pay or negotiate • Follow-Up Letter to Judgment Debtor • Only threaten legal action you’re prepared to take • Be careful not to contact a person you know is represented by counsel • Don’t send collection letters without being aware of the FDCPA rules Advanced Civil Litigation Class 14

7. Collecting from a Deadbeat Judgment Creditor • Methods of collecting property owned by the judgment debtor • Execution • This is the general process of securing satisfaction of a judgment • Levy • You need to get a writ issued by the court ordering law enforcement to seize property of the debtor’s and sell it • The proceeds are used to pay off the judgment • Receivership • The debtor’s property can be held until its income (or other assets) are used to pay the judgment • Writ of Execution for Specific Property • Mostly relevant when the property is the subject of the action Advanced Civil Litigation Class 14

8. Garnishment of Wages • Application for Writ of Garnishment • This will generally be sought and issued only as a last resort. The court orders the debtor’s employer to pay a percentage of the salary directly to the creditor. • Supporting Affidavit • This must state that • The judgment was obtained • It has not been satisfied after attempts to collect it • Basic Garnishment of Wages Rules • Garnishment may not exceed • (1) 25 per cent of disposable earnings, or • (2) the amount by which disposable earnings exceed thirty times the Federal minimum hourly wage Advanced Civil Litigation Class 14

9. Judgments: Other Issues • When a judgment is entered, it’s generally good for 10 years. Then it can be re-filed • Domesticating a Judgment • This is necessary to import a judgment from a different state • States must accept other state’s judgments, but the process required in the jurisdiction must be followed • Obtaining an Exemplified Judgment • This is an authenticated copy of the judgment provided by the court (for a fee) that can be used in execution • Keeping Track of Collections of Judgment • The file should be organized and kept up to date just as though the trial were still ongoing Advanced Civil Litigation Class 14

10. Appeals- Rules and Standards • Questions of Law • This is a question of application of the law by the judge • E.g., issues of evidence or jury instructions • Appellate courts review many questions of law de novo • many evidentiary issues that are fact based are reviewed only for “abuse of discretion” • Questions of Fact • The appellate court gives wide deference to the trier of fact on these issues, but can reverse if, as a matter of law, the only legal conclusion is the opposite of the verdict • An error by the lower court judge does not automatically mean reversal. • Reversible error requires that the error played an important role in the case and the judgment Advanced Civil Litigation Class 14

11. Appellate Procedure Checklist • Federal Rules of Appellate Procedure govern in federal courts • Steps in the process include: • Notice of Appeal must be filed with the appropriate court and sent to the opponent • Check out the FRAP’s time limits • File bond, if necessary • Order a transcript of the trial and designate the trial record • Send all papers to the clerk of the court of appeals • Draft the appellate brief • File for extension of time if necessary • Record oral argument time and format • Rehearing or further appeal if you lose the appeal Advanced Civil Litigation Class 14

12. Assisting with the Appeal • Deadline Control • Managing the timeline is an important task a paralegal can supervise and control • Appeal Management • Make sure each person knows what their role will be in the process • An attorney will make these decisions • Legal Research • Verifying the Record • Indexing and Summarizing the key part of the record • The witness transcripts, exhibits, etc., should be organized so that a person working on a brief can easily recall Advanced Civil Litigation Class 14

13. Assisting with the Appellate Brief • Legal research • Finding appropriate cases and statutes • Preparing rough drafts of sections of the briefs • Or, for less experienced paralegals, drafting memos explain to attorneys or other paralegals what legal research exists in the area • Preparing a table of authorities, a table of contents and an index for the brief • Preparing basic parts of the brief such as: • State of jurisdiction • Statement of question to be considered • Conclusion and relief sought • Preparing final brief for filing, including putting together the exhibits, etc. Advanced Civil Litigation Class 14

14. Assisting with Preparation for Oral Arguments • Preparing an “oral argument notebook” can be invaluable during oral arguments because the arguing attorney can use it for quick reference. It should include separate indexed sections for: • Key statutes that are relevant, organized by topic • Synopses of relevant cases cited in both briefs, organized by topic • Sections of relevant trial record, organized by topic • Copies of important documents and exhibits, organized by topic • A paralegal can also serve as a “sounding board” for the lawyer making oral arguments to practice with. You can assume the role of the judge and ask questions. Advanced Civil Litigation Class 14