Post-Trial motions: should you or shouldn't you?

Today's DJ has Ben Feuer's Don't Walk Into A Post-Trial Motion Trap

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.

For "fun with writing decisions", see Law360 for Wild West Lives On In Texas Judge's Outlandish Opinions.

And see When the Supreme Court Lurches Right in yesterday's NY Times Magazine.