Going Through the Motions: Steps to Consider Before Your Notice of Appeal

David Wilson — Fri, 16 Nov 2007 18:00:00 GMT

After an adverse verdict or ruling, the thoughts of clients and their counsel naturally turn to the court of appeals and the potential for relief in that forum. Hollywood movies and television will occasionally even show lawyers taking a verbal "notice of appeal" just after the jury verdict is announced. However, in the real world, careful thought should be given to filing a formal notice of appeal.

This is true for two reasons. First, trial courts often let issues which likely should be resolved as a matter of law go to the jury in hopes that the jury will "sort it out". In the logic of many trial judges, it is easier to justify denying relief as a matter of law after both parties have had their "day in court" than via summary judgment or directed verdict. Thus, a post-verdict motion will allow the trial court one last chance to grant relief on issues that could have been disposed of before trial but were not. Certainly, a motion to the trial court is a less time-consuming and less expensive means of prevailing than paying for a record and preparing a brief to the appellate court.

More importantly, however, is that in most jurisdictions, certain (if not all) appellate claims must be presented to the trial court after the verdict or judgment to be preserved for appellate review. For example, most Federal circuit courts have ruled that a party that did not file a renewed motion for judgment as a matter of law (formerly called a motion for judgment notwithstanding the verdict), waives claims of insufficiency of the evidence on appeal. Another important effect of some post-verdict or post-judgment motions is that they extend th deadline in which to file a notice of appeal. Under Federal Rule of Appellate Procedure 4(a)(4)(A)(v), a timely motion for new trial tolls the deadline to file a notice of appeal until after an order is entered disposing of the motion. Most state appellate systems also provide that certain post-judgment motions alter the deadline for notice of appeal.

In this regard, care must be taken as to the timing of the motion. Some circuit courts have help that filing a post-judgment motion after the verdict but before the entry of final judgment does not extend the deadline to file a notice of appeal. See e.g. Mosier v. Federal Reserve Bank, 132 F.2d 710, 712 (2d Cir. 1942). The logic of these circuits is that the entry of judgment as a matter of law or motion for new trial. Motions for new trial have another important role, because they are usual vehicles to bring matters to the attention of the trial court (and, eventually, the appellate court) that are outside the record, such as allegations of jury misconduct or newly discovered evidence.

Whether in state or federal court, a party who is considering seeking review of a verdict of judgment should first consult the applicable rules for post-verdict motions. Care should be taken to ascertain the deadline for such motions, as they are often different from the deadline to file a notice of appeal. A party is required be just as vigilante in urging these motions in a timely manner after the trial as it was in making objections during the trial.

16-Nov-07 12:00 PM

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Going Through the Motions: Steps to Consider Before Your Notice of Appeal