Chapter 12: Verdict and Appeal

After the parties rest, a structured set of post-evidence procedures — final jury instructions, deliberations, verdicts, judgment orders, post-trial motions, arbitration awards, administrative decisions, and appellate processes — determines how the case is concluded and preserved for review.

Chapter 12

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12.1 Introduction

12.2 Jury Instructions and Verdicts

A. Jury Instruction Conference

B. The Judge’s Charge

C. Objecting to Instructions

D. Bench Trial Orders

E. Administrative Decisions

F. Arbitration Awards

G. Jury Trial Stipulations

12.3 Jury Deliberation Procedures

A. Deliberations

B. Sequestering the Jury

C. Providing Instructions

D. Access to Evidence

E. Juror Notes

F. Questions by Jurors

G. Unanimous Jury Verdict

H. Deadlocked Jury

12.4 Return of the Verdict

A. Polling the Jury

B. Discharging the Jury

C. Contacting Jurors

D. Misconduct by Jurors

E. Impeaching a Verdict

F. Motion to Question Jurors

12.5 Post-Trial and Post-Hearing Motions

A. Motion Grounds

B. Motion to Dismiss

C. Motion for Judgment as a Matter of Law

D. Motions in Bench and Criminal Trials

E. Motion for New Trial

F. Rulings on Post-Trial Motions

G. Motions to Reduce or Increase Verdict

H. Motion to Amend Findings and Conclusions

I. Motion to Revise Administrative Decision

J. Motion to Modify Arbitration Award

K. Timing of Motions

L. Supportive Documents

12.6 Enforcement of Decisions

A. Stay of Entry of Decision

B. Enforcing Judgments, Orders, Awards

12.7 Costs, Interest, and Attorney Fees

A. Costs and Expenses

B. Interest

C. Attorney Fees

12.8 Civil and Criminal Judgments

A. Entry of Civil Judgment

B. Entry of Administrative Decision

C. Entry of Arbitration Award

D. Confirmation of Arbitration Award

E. Satisfaction of Civil Judgment

F. Execution of Civil Judgment

G. Entry of Criminal Judgment

12.9 Appeals

A. Judicial Appeals

B. Administrative Appeals

C. Arbitration Reviews

D. Whether to Appeal

E. Finality

F. Intermediate Appeals

G. Standard of Review

12.10 Appeal Procedures

A. Initiating the Appeal

B. Appeal Bonds

C. Stays

D. Record

E. Appeal Schedule

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REFLECTING ON ADVOCACY

Whereof you are a well deserving pillar, Proceed to judgment.

—Shakespeare

Merchant of Venice, Act IV, Scene I

Justice is not handed down from the Heavens; it must be won here on Earth.

– Bella Abzug

Introduction

This Chapter covers the procedures that occur after all evidence has been introduced and the parties “rest,” after what can be an exhilarating, exhausting, and exciting process. For jury trials, these include final jury instructions, jury deliberations, and the verdict. For all judicial trials, these include judgment orders, post-trial motions, and stays of proceeding. For arbitrations, these involve issuance of awards and post-arbitration matters. For administrative law cases, these include decisions and post-administrative proceedings. For all cases, these involve appellate processes, when available or needed.

Jury Instructions and Verdicts

A. Jury Instruction Conference

The judge selects the jury instructions to be given and the verdict form to be used after the attorneys have submitted their proposed instructions and verdict form and have conferred with the judge. The instructions and verdict form the judge ultimately decides to use constitute the “charge” to the jury. The judge’s decision is based on whether evidence has been introduced requiring or supporting an instruction and what applicable law must be contained in the charge, all of which must be stated accurately, fairly, and understandably. Section 2.9 explained the need for the lawyers to prepare proposed jury instructions and a verdict form early in the case and the procedures involved in submitting these documents to the judge.

The judge must inform counsel before summation and before the charge to the jury what final instructions and verdict form will be used. Typically, the judge holds a conference, commonly in chambers, and discusses the charge with the lawyers. The advocates may suggest alternative instructions and forms or assert objections. The judge concludes by advising the attorneys about revisions, additions, or deletions the judge made to the submissions proposed by counsel and explains the final charge.

Following this conference, the judge issues an order on the record specifying the instructions and verdict form the court plans to give to the jury. The order also notes the proposed submissions from counsel the court has refused to give. When there are reasonable disagreements over final instructions and form language, the judge will work with the lawyers in an effort to reach compromise wording that accurately reflects the law.

Attorneys are provided with a copy of the final instructions and verdict form, which may include notes regarding which proposed portions were granted, denied, modified, or granted or denied in part. The attorneys need to know what exact charge will be given to determine whether any final objections should be asserted and to decide what references or explanations they can make during summation. The proposed and final submissions and objections become part of the case record, in order to ensure their availability for appellate court review. In some jurisdictions proposed instructions and verdict forms are not part of the case file, and advocates may need to have them included in the record.

During this jury instruction conference, additional matters may be considered, including: whether any anticipated problems may arise during closing arguments, the time limits or restrictions regarding summation, the making or renewal of objections or motions, which exhibits may be provided to the jury during deliberations, how the instructions and verdict form will be provided the jurors, and whether it is still not too late for settlement or mediation or plea bargaining.

B. The Judge’s Charge

The judge instructs the jury in open court before or after final arguments. Most commonly, the judge instructs after summation. Many jurisdictions permit the judge to provide instructions before summation, particularly in cases involving factually or legally complex issues. An attorney may request that the judge instruct the jury periodically during the trial, as well as before or after summation, if such instructions will help the jurors better understand the law. The judge has discretion in determining how best to provide instructions. See § 2.10.

Judges attempt to read the instructions and verdict form to the jury in such a way as to make the charge informative and understandable. The jurors are often provided a duplicate of the charge to follow along and to have available during their deliberations. Some judges explain the instructions and verdict form to the jury by paraphrasing or summarizing them. While this approach may make the explanation more conversational, it runs the risk instructions will be misstated or important words or phrases omitted. It is usually better for the judge to recite the contents of the charge.

In addition to instructing the jury regarding the law, some federal judges and state court judges in some jurisdictions may comment on the evidence. These judges, instead of merely explaining the law, can refer to issues in the case and suggest interpretations for the jury. In these jurisdictions, the jury still makes factual determinations, not the judge. The scope of proper comments varies among judges and jurisdictions. The judges who do comment commonly remind the jury that the jurors are the final fact finders regarding the evidence.

At the end of the charge, the judge may ask if the jurors understood the instructions and verdict form or if they have any questions. Some jurors may occasionally ask for a re-reading or an explanation, which the judge has discretion to do. If necessary, counsel may request any corrections to be made or assert objections.

The verdict form is given to the jurors to take into the jury room to complete. Judges typically give the jurors a copy of all of the instructions for their use during deliberations. This submission increases the chances the jurors will properly apply the law and reduces the chance the jury will need the judge to repeat certain instructions.

C. Objecting to Instructions

Errors made in jury instructions are a ground for the trial judge or appellate court to grant a new trial. The standard for a new trial and appellate reversal is whether an instruction was legally accurate and whether evidence supported the instruction. An attorney must make a timely and proper objection to preserve errors based on the jury instructions or verdict form. A party waives all errors unless the attorney objects and provides the court with an opportunity to correct the mistake.

Objections to instructions and the verdict form may be made at the time the judge informs the attorneys of the charge to be given, or, alternatively, objections may be made right after the jury has been charged, before they begin deliberations. Usually, an objection need only be asserted once, and objecting before the charge has been given is commonly sufficient. If an error is first noted during the charge, the objection must be made afterwards and before the jury retires to deliberate.

This process prevents an attorney from remaining silent and objecting later only if the verdict is unfavorable. Whenever made, objections must be made on the record and outside the hearing of the jury. Usually, this is done verbally in the presence of the court reporter, either in chambers or in the courtroom.

The trial lawyer must specifically state the objectionable matter and the grounds for the objection. A general objection is usually insufficient. Examples of objections to planned instructions include:

The instruction:

• Misstates the law by omitting or including a word or phrase (omissions noted).
• Is not supported by missing factual evidence in the case (non-existent facts listed).
• Is confusing or not comprehensible because of its complexity.
• Fails to follow an approved judicial instruction.

The preferred practice is to identify the instruction, explain why it is faulty, and provide controlling authority. The objection is made to allow the judge an opportunity to correct the mistake. For example, the instructions provided by the judge to the lawyers may be proper, but during the oral charge the judge may misstate or omit an instruction. Counsel must call the error to the court’s attention to preserve a ground for a new trial or appeal. An exception to this requirement involves errors of fundamental law or major mistakes that could not have been corrected by the judge.

After the lawyers may have objected to instructions, the judge has an opportunity to modify the charge. Incorrect instructions may be corrected. Explanations given by the judge that may have misled or confused the jury can be clarified. Eventually, the jurors go to deliberate. See § 12.3.

D. Bench Trial Orders

In a civil bench trial, the judge usually decides the case by making findings of fact and conclusions of law in writing or orally on the record. The drafting of proposed findings and conclusions by counsel parallels the considerations involved in drafting proposed jury instructions. See § 2.10. The attorneys typically submit proposed findings of fact and conclusions of law that are consistent with the relief sought. See Fed. R. Civ. Proc. 52 and § 3.12(E).

To withstand a challenge at the trial or appellate court level, findings and conclusions should accurately reflect the supporting evidence and the law. They should also be clear and concise, balanced and not biased. A comprehensive draft of proposed factual findings should reflect the evidence introduced and assist in persuading the judge the relevant facts have been proved. A draft of proposed conclusions of law can similarly assist the judge in determining the legal elements that have been proved.

In a criminal bench trial, the judge will declare the defendant either guilty or not guilty. In some jurisdictions, the judge may have to prepare written findings. In some cases, the judge may explain the decision on the record or in writing.

E. Administrative Decisions

An administrative law judge (ALJ) issues a decision that includes an order, with an accompanying explanation of supporting reasons or findings of fact and conclusions of law. The applicable statutes or rules determine the type of decision made and supporting documentation.

F. Arbitration Awards

An arbitrator issues an award after an arbitration hearing. The decision describes the relief awarded to the prevailing party which typically is money damages and may be any form of relief, including injunctive relief. The arbitrator generally has the same power a judge has and can issue an award within the scope of the arbitration agreement, the rules, and the law. The award format may be a short, summary statement or may include detailed findings, conclusions, and explanations.

G. Jury Trial Stipulations

Trial counsel may stipulate to certain procedures. Before a case is submitted to the jury, the judge may request, or the attorneys may suggest, the following stipulations be agreed upon:

• The court, in the absence of counsel and the parties, may re-read and explain to the jury any instructions previously given or answer any relevant questions, if the jurors request such information while they are deliberating. This stipulation speeds up jury deliberations and allows the judge to meet the jurors with the court reporter without requiring the presence of counsel. It may be difficult for the lawyers to be located and appear because of their schedules. If a major issue arises, the judge may contact counsel.
• The parties waive the right to have the clerk or court reporter present when the jury returns a verdict. The jury may deliberate outside of normal court hours when some court personnel are not present, and this stipulation allows such personnel to be absent. A judge must be present to accept a verdict from the jury. If the judge who presides at the trial is not available, a substitute judge accepts the verdict.
• A sealed verdict may be returned. The judge who accepts the verdict may review it and place it in a sealed envelope. Some jurisdictions may allow a court employee (a clerk or bailiff) to accept and seal a verdict instead of the judge. The verdict will be opened in court later when the judge, lawyers, and parties are or could be available. This stipulation permits jurors to be discharged or to return later, when a verdict is announced when court is in session.
• The parties waive their right to be present when the jury returns the verdict and allow the judge to announce the verdict in open court on the record. If the parties and attorneys would have difficulty in arranging their schedules to attend, they may consent to this procedure.
• The parties waive their right to poll the jury. This allows the judge to discharge the jury immediately after receiving and accepting the verdict. Counsel may prefer to have the jury polled especially if there may be some concern regarding the decision reached by the jurors.
• A stay of entry of judgment for an agreed upon number of days shall be granted after a verdict. This provision allows the losing party to serve post-trial motions without having to seek a stay of entry of judgment or a stay of execution on a judgment that has been entered. See § 12.6(A).

While these stipulations may be routine in some jurisdictions, they are uncommon or disallowed in other jurisdictions. The parties in civil cases are usually free to waive any of their rights regarding the verdict return procedures. Defendants in criminal cases have the constitutional right to be present for all procedures and may or may not waive any of their rights depending upon the nature of the proceeding.

Ordinarily, nothing goes wrong with these procedures, and critical errors do not occur. If something unusual should happen, such an occurrence would rarely present grounds for a new trial. Consequently, many lawyers willingly enter into some of these stipulations.

Many other attorneys, however, reasonably believe that it is wise or necessary to be in court in case something does go wrong. Further, after all the excitement and emotion of a trial, counsel and the parties may be eager to be present for the reading of the verdict. The return of a jury verdict in the courtroom can be a dramatic and rewarding experience and well worth attending.

Jury Deliberation Procedures

After the judge has instructed the jury, they are sworn by the clerk to render a true verdict, and are commonly escorted by the bailiff to their deliberation room. The jury room is typically adjacent to the courtroom. While deliberating, the jury is in the bailiff’s custody.

A. Deliberations

Jurors typically deliberate during normal court hours on weekdays until they reach a verdict. If they deliberate more than one day, they usually go home and return for continued deliberations the following day. They can spend time away from the courthouse with friends and family or work, as long as they do not engage in conversations about the trial, or allow others to influence them, or research or investigate the case.

The judge instructs jurors not to discuss the case with anyone, nor to search the web for information relevant to the case, and not to read any news articles or media sources about the trial nor watch television or cable news or listen to the radio if the trial has engendered some publicity. Some jurors will be tempted to use a smart phone, tablet, or laptop to seek information about issues in the case. Judges need to communicate clearly and firmly that all such actions are prohibited. Verdicts have been overturned and new trials granted when such improper conduct has occurred.

Many juries deliberate during evening hours or over the weekend, especially if they are close to a verdict, or if there is some reason to accelerate the reaching of a verdict, for example, an upcoming holiday. Jurors are usually free to set their own pace and establish their own hours for deliberation, as long as the schedule is reasonable. They should take enough time to reach a just verdict and avoid being improperly rushed.

B. Sequestering the Jury

In major criminal cases and in notable or prime civil cases, the jury may be sequestered during deliberations and stay at a hotel or motel instead of going home. This does not happen often because of the expense involved and because few trials warrant such an additional safeguard. The bailiff, assisted by marshals or other court personnel, is responsible for the jurors and arranges for transportation, lodging, food, edited reading materials, restricted use of cell phones and internet devices, and selected television and cable programs and movies.

C. Providing Instructions

As explained previously, the judge commonly allows, or an attorney may request, that a copy of the jury instructions be provided for use by the jurors during deliberations. Some portions of the original instructions, which are not needed by the jurors, may be removed, such as the number, caption, citations to authority, and other comments.

D. Access to Evidence

Jurors are to generally rely on their memories, observations, and conclusions from the trial during deliberations. Trial transcripts and other evidence are not provided the jury to review the entire case. Portions of key witness testimony and some evidentiary exhibits may be allowed by the judge, particularly if during deliberations the jurors request to examine some evidence. See § 12.3(F).

The trial judge has discretion to decide whether evidence exhibits will be allowed in the jury room. In some jurisdictions, real evidence exhibits are provided if feasible, unless counsel object and present a good reason for opposing this practice. In other jurisdictions, exhibits are not provided to avoid the exhibit evidence from having more impact than testimonial evidence. Demonstrative evidence such as diagrams may not be allowed. Visual aids presented during the opening and summation are usually not provided.

Advocates should review exhibits to ascertain their impact on deliberations. Favorable exhibits afford jurors an accessible and visual statement as well as a reminder of supportive evidence. To assure these exhibits are provided, counsel can argue that the exhibits provide the jurors with accurate and complete relevant facts that will expedite their deliberation process. An unfavorable exhibit may be avoided by counsel arguing against its submission claiming that the jurors will give the exhibit undue weight and fail to consider testimonial evidence equally. The court may decide, in its discretion, not to submit an exhibit because the jury might place undue emphasis on it, the exhibit may be dangerous, or it would not assist the jurors in reaching a fair verdict.

E. Juror Notes

The judge has broad discretion in deciding whether to allow jurors to take notes and whether the notes are allowed in the jury room. Judges may allow jurors to take notes during the trial, and judges might not allow them to bring these notes to the deliberation room. The exclusion of notes avoids the problem of notes being considered evidence and prevents note-taking jurors from exercising more influence in deliberations than other jurors. Usually, jurors are instructed to rely on their collective recollection of testimony, and to disregard the summary notes if inconsistent with their fresh recall of evidence,

F. Questions by Jurors

A jury may have questions regarding the case or want to have some instructions re-read or explained by the judge. In these situations, the foreperson can submit a note to the judge asking to meet or may reduce the questions to writing and submit them through the bailiff to the judge. Jurors may also request to see a real evidence exhibit or to review a transcript of critical testimony.

The judge has discretion to reinstruct, explain, re-read instructions, answer questions, or decline to do anything. The proper way for the judge to meet with the jury is in the courtroom and on the record and to notify the lawyers, unless counsel have stipulated they need not be notified. Commonly, a clerk contacts counsel or their offices, advise them of the jury’s request, and ask whether they wish to attend. In civil cases, judges may meet with the jurors regarding some issues without notice to the attorneys. In criminal cases, the defendant and the lawyers usually have a right to be present.

Many juries do not have any questions for judges. Some judges are reluctant to respond to jury requests because they do not want to interfere with the decision making of the jurors. Other judges, perceiving that a jury is having major disagreements, will attempt to assist the jurors in an effort to avoid a hung jury. See § 12.3(H).

The court may not be able to resolve some problems the jury has. The jurors may want help on factual issues that are exclusively within their domain, or they may ask the judge to assist in the application of jury instructions to the facts, something only the jurors themselves may do. For example, if the jurors ask for an explanation of the meaning of a word or phrase in a jury instruction, the judge may be able to do so. If the jurors ask the judge to resolve a factual dispute, the judge must refuse this request as this is within the exclusive province of the jury.

After the judge responds to the questions or problems, the jurors return to deliberate.

G. Unanimous Jury Verdict

In criminal cases, a jury verdict must be unanimous, except in a few states that allow an 11-1 or 10-2 verdict. In civil cases, verdicts may be unanimous, but many jurisdictions allow non-unanimous outcomes. These jurisdictions, by statute or rule, allow a less-than-unanimous civil verdict or allow a split verdict to be returned after the jurors have deliberated for a certain period of time without reaching a unanimous decision. For example, a jurisdiction may permit a civil verdict to be returned by 5 out of 6 jurors after the jurors have deliberated more than 8 hours. Some jurisdictions, including federal courts, allow civil parties to stipulate to less-than-unanimous decisions.

H. Deadlocked Jury

If the required minimum number of jurors cannot agree on a verdict after a significant amount of time, the jury is said to be deadlocked, and the judge may discharge them and declare a mistrial. What is a significant amount of time depends upon the facts and circumstances of each case. Usually, the judge will not declare the jury hung unless a lengthy period of time has passed and it is clear that the jurors are deadlocked.

The time period may be a few or several days depending upon the number and complexity of the issues, how far from agreement the jurors are, how the deliberations are proceeding, and how fruitless further deliberations are likely to be. In a simple case, a judge may declare a jury deadlocked after a few days of unsuccessful deliberations. In a complex case, a week or more of unproductive deliberations may pass before a judge will declare a jury hung.

Because the remedy for a trial resulting in a hung jury is a new trial with new jurors, courts are reluctant to declare a jury is deadlocked. Judges will do what they can to explain jury instructions, answer appropriate questions from jurors, and encourage them to reach a verdict to avoid having to go through another trial of the same case.

Many jurisdictions allow a judge to give the jurors a “dynamite” charge (also known as an Allen charge). This occurs when the judge brings the jurors in open court and firmly and assertively reminds them of their responsibilities and their need to reach a verdict in the case. Some jurisdictions prohibit this type of charge because of the undue pressure the judge may exert on the jury and a forced verdict.

Return of the Verdict

The foreperson of the jury advises the bailiff when the jurors have reached a verdict. The bailiff advises the clerk or the judge that a verdict has been reached, and they, in turn, contact trial counsel, who may want to or must attend with their clients. When the jury completes deliberations during regular court hours, the trial judge or a substitute judge brings the jurors into the courtroom for the return of their verdict.

If the jurors return a verdict outside of regular court hours, the bailiff will contact the judge who will then accept the verdict. Counsel may stipulate that neither they nor the judge need be present when the verdict is returned and that a clerk may accept a sealed verdict. In these infrequent situations, the verdict is opened by the judge during standard hours, with or without the jurors or lawyers present depending upon the court protocol or agreement of counsel.

When the jurors return to the courtroom, the foreperson typically provides the completed verdict form to the bailiff or clerk, who in turn hands it to the judge who reviews it. If the verdict form is incomplete or inconsistent, then the judge usually orders the jurors to return and properly complete the verdict form. If the verdict form is properly completed, the judge, or clerk, or foreperson reads the verdict in open court; and the judge or clerk may then ask the foreperson if the verdict is true and accurate.

A. Polling the Jury

After the verdict has been read, and before the jurors have been dismissed, counsel (typically the losing side) may request that the jurors be individually polled. The trial judge or clerk usually polls the jury by asking each individual juror whether the verdict is their own true and correct verdict. If all the jurors agree, the judge dismisses them. If a juror dissents from the verdict (this rarely occurs), the judge ordinarily orders the jurors to continue deliberations to reach a proper verdict. In civil cases where a less-than-unanimous verdict is permitted, only those jurors that supported the verdict need to affirm their position.

In some jurisdictions, polling the jury is a routine procedure. In other courts, polling is uncommon. Some lawyers do not do so unless they believe there were problems among the jurors during deliberations. There is no disadvantage for a defeated attorney to ask the jury to be individually polled, except the pain of being repeatedly rejected by jurors in open court.

B. Discharging the Jury

After the verdict has been read and after polling, the judge discharges the jurors, thanking them for their participation, and advising them they may, but need not, speak to anyone, including the attorneys about the case.

C. Contacting Jurors

A trial advocate may talk to or with the jurors after they have been discharged. The limited topics counsel may discuss with the jurors vary among jurisdictions. Some jurisdictions prohibit the lawyers from talking with the jurors except to thank them for their time. It is common courtesy for the winning and losing attorneys to thank the jurors before they leave the courtroom.

Other jurisdictions allow counsel to ask the jurors to comment on trial strategies or to critique the trial skills of the lawyers. Many jurors will be candid and the attorneys can learn much from these conversations. Some advocates retain a professional to contact the jurors and ask them prepared questions seeking information on what went right with the trial presentation, or what went wrong.

Jurisdictions commonly prohibit attorneys from contacting jurors after they leave the courthouse if the purpose is to discover what happened during deliberations or to obtain information in support of a motion for a new trial. These courts typically enforce these restrictions by declaring these contacts by the lawyers improper and unethical and by refusing to consider any information obtained in this manner.

Some jurisdictions allow limited contacts. If an impropriety involving the jury may have occurred, these jurisdictions permit advocates to prudently contact jurors after the trial and carefully ask whether any prejudicial or extraneous matters unfairly affected the deliberations. Other jurisdictions only permit these inquiries by counsel to occur during a post-trial hearing granted by and presided over by the trial judge. Relevant information that is established may be a ground for a new trial.

All jurisdictions prohibit attorneys and parties from pressuring or harassing the jurors and prohibit inquiries into the contents of jury deliberations as these are entirely confidential. See § 12.4(E).

D. Misconduct by Jurors

Misconduct occurs if the jurors allow their verdict to be influenced by improper factors other than the evidence, or if they accept a bribe, or if the jurors wrongfully refuse to clearly follow the law. If a nonjuror improperly contacts a juror about the case before a verdict is reached, the juror must immediately inform the judge. If the contact prejudicially affects the juror’s ability to be fair and impartial, the juror will be dismissed and replaced with an alternate. If there is no alternate juror, the judge must declare a mistrial, or may declare one in civil cases if the parties prefer to continue or a verdict reached by fewer jurors is allowed.

Jurors may not decide a verdict on the basis of personal knowledge of the case or parties. Any knowledge about a relevant matter should be disclosed during jury selection, and the juror excused. Likewise, jurors may not base their decision by relying on their personal experiences in lieu of evidence. Further, jurors cannot base their decision on information improperly obtained from prohibited sources such as non-witnesses or internet web sites.

Jury misconduct is a ground for a motion for a new trial or a reason for appellate reversal of a verdict. The misconduct must be of such a nature that a party has been unfairly and prejudicially affected. The mere occurrence of misconduct is usually not enough. The mistake must result in substantial prejudicial error. Serious misconduct may occur when jurors obtain prohibited information because it is impossible for them to ignore the information or not be unfairly influenced by it. See § 12.9(D).

E. Impeaching a Verdict

Jury deliberations are confidential and protected by the law. Deliberations will not be interrupted, and a verdict will not be discarded, unless some extraneous prejudicial information or unfairly improper influence has adversely affected the process or verdict. Examples of improprieties include bribing the jurors or improper comments by a court official, such as the bailiff, telling the jurors how they must decide. Jury misconduct that occurs during deliberations is difficult to discover. A juror who observes prohibited conduct, such as jurors searching web sites or relying on extraneous matters, has an obligation to reveal such misconduct to the judge.

Most jurisdictions follow the federal rule that prohibits a juror from testifying to any statement made during the course of jury deliberations, or to the effect of anything that may have influenced the juror’s minds or emotions, or to any matter concerning the juror’s mental processes. See Fed. R. Evid. 606(b). The federal rule and similar state laws permit jurors to testify only in unusual situations where some extraneous prejudicial information was disclosed, or an outside deleterious influence affected jurors, or a juror lied in jury selection committing a fraud on the court. These restrictions severely limit the impeachment of a jury verdict and insure that verdicts will be final and enduring. These limitations also reduce the chances that jurors, after a trial, will change their minds about a verdict because of pressures placed on them by participants or outsiders.

F. Motion to Question Jurors

An advocate who learns that unfair prejudicial matter may have adversely affected jury deliberations may move the court for a hearing regarding that matter. The moving attorney must first establish that such information is reliable. Many jurisdictions accept hearsay information as sufficiently reliable if the information shows the existence of improper and extraneous information or serious juror misconduct that may have prejudiced the verdict.

If a judge agrees that a hearing is warranted, the judge usually calls jurors back to be questioned individually about the matters. The judge typically conducts the questioning, with the lawyers submitting proposed questions to be asked by the judge. Counsel may also be able to ask questions of the jurors after the judge has completed questioning. These hearings are infrequently granted because of the difficulty in learning about these matters and the heavy burden of proving they had a prejudicial effect on the verdict.

Post-Trial and Post-Hearing Motions

In all cases, after a final order, award, or verdict, one or all parties may submit post-trial or post-hearing motions requesting the decision to be reviewed. These motions are commonly required to preserve the right to appeal based on significant trial or hearing errors or failures allowing the trial judge, arbitrator, or ALJ to correct prejudicial mistakes. An LLM-backed legal tool can assist with interposing these motions by suggesting grounds, strategies, tactics, and evidence or the lack thereof. See § 1.10(E).

Motion Grounds

The grounds supporting a post-trial or post-hearing motion must be substantial and demonstrate undue prejudice requiring a new trial or hearing or a reversal of a verdict or order. Mistakes will occur during case presentations. A party may fail to prove part of an unessential claim or defense. Errors will be made by witnesses, counsel, judges, jurors, arbitrators, and ALJs.

Parties are entitled to a fair trial or hearing, and not a perfect one. The doctrine of harmless error applies, which maintains that mistakes that occur are insufficient to require a reversal of a decision if the errors have not materially and adversely affected the verdict or outcome. Technical faults, procedural errors, and even considerable mistakes must have a harmful and unfair impact on the results of a case in order to support relief. See Fed. R. Evid. 103(a) and § 12.9(D).

B. Motion to Dismiss

A defending party may bring a motion to dismiss during or after a trial or hearing to seek the dismissal of a bench trial, administrative hearing, or arbitration. Section 3.8(C)(7) explained motions to dismiss. A motion to dismiss can be granted in cases where the plaintiff/claimant/prosecutor fails to prove a case. It would be uncommon to have a motion to dismiss granted after all parties have completed presenting their evidence. Decision makers, advocates, and our justice system prefer a final decision be made based on the evidence submitted and not on a motion ruling.

C. Motion for Judgment as a Matter of Law

A party may bring a motion for a judgment as a matter of law during a civil jury trial at the close of the opponent’s evidence, at the close of all the evidence, or on both occasions. Or a party may bring a motion after the jury has returned a verdict. The grounds for these motions require the judge to review the evidence in a light most favorable to the nonmoving party and rule that the evidence is insufficient to sustain a verdict for the opponent.

In federal courts and in some state courts, these motions are known as motions for judgment as a matter of law (JMOL or JAML), whenever they are brought. In many state courts, a motion brought during the trial or at the end of all the evidence is known as a motion for a directed verdict; and a motion brought after the jury has returned a verdict is known as a motion for judgment notwithstanding the verdict (judgment n.o.v. or j.n.o.v. from the Latin “non obstante veredicto”). In all courts, the grounds for these motions, however named, are the same as described below.

1. Motion Before the Jury Verdict

The basis for determining whether a motion for judgment as a matter of law (or a directed verdict motion) should be granted in a civil case is whether any reasonable person could find on behalf of the respective party based on the evidence submitted. There is no reason for the jury to decide a case if no reasonable juror could so find. The judge can and should make that right and just decision.

If a motion brought by the defendant after the plaintiff has rested is granted, then the defendant need not introduce any evidence, and judgment is granted for the defendant. If the motion brought by either party after both sides have rested is granted, then there is no need for closing argument or jury deliberations, and a judgment is entered for the prevailing party.

Judges are not inclined to grant pre-verdict motions but prefer to allow cases to go to the jury, perhaps followed by granting post-trial motions to remedy any serious problems. Judges will grant a motion in part and dismiss some claims in a multiple count lawsuit if the evidence supports some but not all the causes of actions.

2. Motion After the Jury Verdict

The same “reasonable person” standard in civil cases for determining whether to grant or deny a JMOL (or j.n.o.v. motion) is identical to the standard explained in the previous section. The judge must find that, as a matter of law, the only reasonable conclusion that could be reached from the evidence is that the moving party is entitled to judgment and the jury’s determination of the evidence was unreasonable and wrong.

There usually is some reasonable evidence to support the verdict, and judges cannot merely substitute their judgment for that of the jurors, and these motions are seldom granted. If the JMOL or j.n.o.v. is overturned on appeal, the jury’s verdict is reinstated and becomes the final verdict.

In many jurisdictions, a pre-verdict motion (first motion) must be made prior to jury deliberations before a judge may consider a post-verdict motion (second motion) after the jury has returned the verdict. The initial motion is a pre-requisite to the making of the subsequent motion. In other jurisdictions, either or both motions can be made independently.

D. Motions in Bench and Criminal Trials

In civil bench trials, a motion to amend findings, conclusions, and the order is brought because the judge decided the case and there is no verdict. In criminal cases, the defense brings a motion to dismiss or for judgment of acquittal to challenge the outcome. A prosecutor may not or cannot bring such a motion because the government cannot ordinarily challenge the insufficiency of the evidence. In criminal jury trials, a judge cannot reverse a jury verdict rendered in favor of the defendant, unless in an unusual case there are grounds for a new trial, such as juror corruption.

E. Motion for New Trial

A party may seek a second trial or hearing if some serious error or misconduct regarding the law, facts, rules or procedure occurred during the first proceeding. Ordinarily, a losing party seeks this relief, but a prevailing party might also seek this outcome on all or some of the issues if the result did not provide the winning party with complete or sufficient relief. Before a verdict, order, award, or decision will be overturned and a subsequent trial or hearing granted, the party must have been denied a fair proceeding.

A new trial motion may raise questions of law and fact. See Fed. R. Civ. P. 59 and Fed. R. Crim. P. 33. The specific grounds vary among jurisdictions. Generally, a new trial may be granted if:

• A party was deprived of a fair trial because of significant and considerable procedural irregularities caused by the judge, jury, or prevailing party.
• The judge, jury, or prevailing party committed serious detrimental misconduct.
• The case outcome was unduly prejudiced by a surprise situation that could not have been anticipated or prevented by using ordinary care.
• Relevant and compelling evidence has been newly discovered which, with reasonable diligence, could not have been found and produced at the trial or hearing.
• Excessive or insufficient damages were awarded by the jury based on undue passion or prejudice.
• Material errors of law occurred at the trial or hearing, including wrong evidentiary rulings and incorrect jury instructions, that resulted in an unfair verdict or decision.
• The verdict is not justified by the evidence or is contrary to the law.
• A verdict, order, award or decision is fatally defective.

Commonly, a motion for a new trial is brought at the same time as a post-trial motion for JMOL or a motion to amend. In some jurisdictions, when a motion for a new trial is not made to the trial court, the appellate court will only review the case to determine if the evidence and law support the verdict. Other issues, including errors of law and fact, may not be reviewed unless the attorney has made a motion for a new trial permitting the trial judge to rule on the propriety of the purported grounds.

A party may also bring a new trial motion before a judge in a bench trial based upon some of the above applicable grounds. And a motion for a new hearing could be brought after an administrative law judge decides a case, and after an arbitrator issues an award based on the tribunal rules providing grounds for such a procedure. These motions require the professional decision maker, who has decided the case, to conclude that the decision is severely flawed and must be declared invalid, requiring another bench trial or hearing. This result is uncommon as it is the professional decision maker who originally reached a fair and just outcome based on the evidence and law and would have to overturn that result.

F. Rulings on Post-Trial Motions

A losing party may bring a motion for a judgment as a matter of law and a motion for a new trial in civil jury trials. In ruling on these motions, the trial court has four options:

• The court may grant the JMOL and also **grant **the new trial,
• The court may grant the JMOL and deny the new trial,
• The court may deny the JMOL and grant the new trial, or
• The court may deny both motions.

The alternative motions present separate and distinct questions to the trial court as described in the preceding sections. The most common ruling is the fourth option listed, and the others are seldom granted because the asserted reasons for these motions do not sufficiently establish that there occurred substantial injustice and unfair prejudice to a party.

Legal databases can provide outcomes of motions (e.g., JMOL) that are interposed in similar cases, including published trial court orders and appellate opinions. See § 1.10(E). This kind of “cases like this” data can be helpful in determining grounds to support a motion, as well as assessing explanations in defending a post-trial motion. And LLM-backed tools can help convert data of “cases like this” into persuasive arguments in the operative motions.

G. Motions to Reduce or Increase Verdict

In some civil jury cases, the losing party or unhappy prevailing party may not want a new trial on the merits but may want a different monetary award. A losing party may seek a reduction in the verdict by bringing a motion for a new trial requesting a remittitur. This motion requests that the court determine the verdict amount is unreasonable or is based on errors and that the court conditionally grant a new trial, unless the opposing party accepts a reduced dollar judgment.

For example, if a jury returns a $1,000,000 verdict in favor of the plaintiff, defense counsel may request the court to order a remittitur to $500,000 or grant a new trial. If the court grants this motion, the plaintiff, faced with this remittitur, must either accept the reduced $500,000 judgment or proceed with a new trial.

Some state courts, but not the federal courts, permit a post-trial motion to increase the dollar award of a jury verdict for a dissatisfied prevailing party. This procedure, known as additur, has the opposite effect of a remittitur. The verdict winner requests that the court order an additur because the jury verdict was insufficient based on the evidence or grant a new trial. For example, a plaintiff who received a verdict of $250,000 may have a court upon request by the plaintiff order an additur of $125,000. Faced with this additur, defense counsel must either accept the increased judgment of $375,000 or proceed with a new trial.

H. Motion to Amend Findings

and Conclusions

In a bench trial and in some administrative hearings and arbitrations, a party may move to amend the findings of fact, conclusions of law or order made by a judge, ALJ, or arbitrator. The motion must explain which findings are not supported by the evidence, which conclusions are not supported by the law, and why the order is improper. The motion should also propose revised findings and conclusions. Some jurisdictions require this motion be made to preserve issues for appeal.

Section 3.11(E) explained the procedure for submitting proposed findings, conclusions, and orders. Motions to amend ask for a change of mind and heart, which is a very unlikely event. The decision maker is unlikely to do so unless the advocate convincingly shows that the evidence does not support a factual finding or that the law is clearly contrary to the resulting conclusion.

I. Motion to Revise

Administrative Decision

In administrative law proceedings, a party may be able to seek modifications to the decision based on similar grounds available in a bench trial or based on relevant grounds listed below applicable to arbitrations. Fundamentally, the movant claims that errors occurred that require revisions be made to the administrative outcome.

J. Motion to Modify Arbitration Award

In arbitration, a party may bring a motion to reopen an award under very limited circumstances. These alternative situations include:

• The award is not final.
• The award is ambiguous or incomplete.
• The award contains evident material mistakes.
• A party was not timely served with critical case documents.
• A party was denied a fair opportunity to present relevant evidence.
• The arbitrator did not decide a submitted issue.

These grounds may also support a motion to vacate an arbitration award. Additional grounds (e.g., arbitrator exceeded power) may also support an effort to vacate an award similar to the grounds attacking a decision by a trial judge or ALJ. See § 12.9(C).

K. Timing of Motions

When a post-trial or post-hearing motion must be made depends upon the rules of the court or arbitration or administrative agency. The time available for these motions is ordinarily limited to no more than 10 or 30 days after a verdict or after a party has been notified of the decision. See, e.g., Fed. R. Civ. P. 59 and Fed. R. Crim. P. 29, 33, 34, and 45. These time limits are usually strictly enforced. If an untimely motion is made, the motion will not be considered. The reason for such short, strict time limits is that these motions need to be considered while the events are recent and fresh in the recollection of the judge, ALJ, or arbitrator and because there is a need to conclude cases with finality.

L. Supportive Documents

The submission of a supportive memorandum explaining the factual and legal grounds for the motion may be required and, if done well, will increase the chances of obtaining a favorable ruling. In some cases, supportive affidavits or declarations will be necessary to establish the grounds for a motion. Proposed changes to the contents of the decision can highlight the amendments that are being sought. See § 3.8(A)(2).

Enforcement of Decisions

A. Stay of Entry of Decision

A losing party ordinarily needs to obtain an order from the judge or a ruling from an ALJ or arbitrator to stay or delay the entry of the judgment or the enforcement of an award or decision until the post-trial or post-hearing motions have been decided or an appeal taken. Stays can be commonly granted to preserve the status quo until final rulings have been entered. See Fed. R. Civ. P. 62 and Fed. R. Crim. P. 34. Without a stay or a delay in entry, a judgment, order, or award may be able to be immediately enforced.

The losing party should bring a motion seeking a stay or delay that temporarily prevents the winning party from obtaining or enforcing the result. If a motion for stay of entry of the decision has been denied or a judgment, order, or award has already been entered, the losing party can bring a motion to stay enforcement of the outcome. If that motion fails, the losing party in a court case may bring a stay motion before an appellate court. Parties in arbitration and administrative cases need to review the applicable rules regarding a stay remedy.

B. Enforcing Judgments, Orders, Awards

Many civil cases conclude after the verdict or decision by the losing party providing the relief awarded the winning party, usually by paying money. Other cases are resolved through settlement negotiations, with the losing party foregoing post-trial or post-hearing and appellate procedures and the winning party accepting a compromise amount. See § 12.9(D). Otherwise, the victorious party will need to seek enforcement of the relief provided.

The victorious party may seek to promptly enforce a civil court judgment that has been entered. See § 12.8(A). The winning party may initially seek voluntary compliance with a judgment by the losing party unless a stay has been granted or an appeal sought, as explained previously.

The nature of the administrative decision and the law determine how administrative outcomes are to be enforced. Some administrative decisions are self-enforcing, others may be enforced by the administrative agency, and others may be enforced by a court as a judicial order is enforced. See § 12.8[B].

An arbitration award may be enforced by having it confirmed into a judgment. If the losing party refuses to abide by the award, the prevailing party can bring a motion or petition in court to confirm the award into a civil judgment and enforce the judgment. See § 12.8(D).

After all available legal proceedings have been exhausted, losing parties need to comply with the result or face enforcement and collection efforts. See § 12.8.

Costs, Interest, and Attorney Fees

A. Costs and Expenses

A prevailing party in a civil trial, administrative case, or arbitration is commonly entitled to receive reimbursement for the costs incurred during the proceeding, as allowed by law. Recoverable expenses typically include witness fees, reasonable expert fees, service fees, filing fees, expenses for depositions used during the case, the cost of any transcripts, and related expenses. This process is often known as taxing costs.

Forms may be available from the clerk or administrator that the prevailing attorney may complete to obtain reimbursement. In judicial cases, recoverable costs may be automatically taxed unless the losing party, within a limited period of time, challenges the costs. A party may request a hearing to determine whether expenses are recoverable.

B. Interest

A victorious civil party is usually able to recover interest in a case. There are two major types defined by time periods: (1) prejudgment or prehearing interest and (2) post-judgment or post-hearing interest.

1. Prejudgment/prehearing interest generally covers the period of time between the date the cause of action arises and the entry of the order, award, or judgment. This period of time covers the trial or hearing procedures and may cover months or years.
2. Interest may also be earned during the time period between the initial outcome and the payment or final enforcement of the result. This duration includes post-trial/post-hearing motions and any appeal and may cover a few weeks, several months, or longer.

Interest is recoverable if an agreement between the parties provides for interest or if the law allows such recovery. The general rule is that interest is obtainable for liquidated damages (i.e., contract cases) and not for unliquidated damages (i.e., tort cases). Many jurisdictions have enacted laws that specify the types of cases that support recoverable interest. Some provisions establish the amount of interest by setting a fixed specific percentage. Other laws, which are more common, adopt a floating method of calculating interest, based upon U.S. Treasury Bills or other financial instruments.

C. Attorney Fees

A prevailing party may or may not be entitled to recover attorney fees. The American rule allows a winning party to recoup reasonable fees based on: an applicable statute, a contractual agreement, a class action claim, bad faith conduct, case precedent, or the common law. Otherwise, the general rule is that attorney fees are not obtainable from the losing party. Common cases that do not typically provide for attorney fees include vehicle accident and tort actions.

The types of actions supporting recoverable fees based upon federal and state statutory provisions include cases involving consumer law issues, securities law matters, antitrust disputes, and civil rights violations. Civil actions involving contractual agreements often include specific terms that permit the prevailing party to collect attorney fees from the losing party. Case law doctrines may permit a winning party to obtain fees in cases brought or defended in bad faith. Jurisdictions may permit fee recovery if a common fund exists in a case, such as a class action, or if the successful party has won a common benefit for a group of injured persons.

Judges, arbitrators, and ALJs have the authority and discretion to determine the reasonable amount of fees, when available, which amount is included in a final or subsequent judgment, award, or order. The party seeking attorney fees commonly brings a motion requesting a specific amount. The total amount includes the time and effort the attorney for the victorious party expended based on the common fees charged in the legal community. A standard formula used, known as the “lodestar” method, multiplies the number of compensable hours worked times a reasonable hourly billing rate which may be adjusted upward or downward depending upon several factors including: the complexity of the case, significance of issues, quality of legal services, likelihood of success, risks incurred, opportunities foregone by counsel, and related factors.

Civil and Criminal Judgments

A. Entry of Civil Judgment

A judgment is not effective or enforceable until entered by the clerk or administrator. See, e.g., Fed. R. Civ. P. 58. In a jury trial, if a general verdict form is used, the clerk automatically enters the judgment unless the court orders otherwise. If a special verdict form or general verdict form with interrogatories is used, the judge must issue an order entering judgment. In a bench trial, the judge must direct that judgment be entered based upon the order of judgment decided by the court.

Entry of judgment is critical in order to permit the filing of a notice of appeal or to permit a party to execute on the judgment. In many jurisdictions, unless judgment is entered, no appeal may be taken from that judgment. In all jurisdictions, a prevailing party cannot execute on a judgment until the judgment is entered. As previously explained, a losing party who plans to appeal or prevent the opposing party from enforcing a judgment pending appeal must obtain a stay from the trial judge that stops enforcement of the judgment. See § 12.6(A). In some jurisdictions, after an appeal has been filed, this stay must be obtained from the appellate court because the trial judge may no longer have jurisdiction over the case.

B. Entry of Administrative Decision

An administrative decision becomes final when it is issued by the administrative law judge or when it is filed or entered with an administrative agency. The applicable statute or rule determines how it becomes final and how it is enforceable as a judgment.

C. Entry of Arbitration Award

An arbitration award becomes final when it is issued by the arbitrator or when it is entered by the administrative organization. An arbitration award can be readily converted into a civil judgment by a court through a confirmation proceeding.

D. Confirmation of Arbitration Award

The prevailing arbitral party may bring a motion or petition to confirm the arbitration award in a jurisdiction where the losing party resides, does business, or has property. Awards can be confirmed as a judgment in any court with jurisdiction by following the statutory and court processes. Federal and state arbitration acts govern the procedures. See Federal Arbitration Act, 9 U.S.C. Section 15. After the court confirms the award into a civil judgment, it is enforceable like any judgment.

E. Satisfaction of Civil Judgment

Most losing parties pay a judgment or attempt to negotiate a compromise settlement. A judgment is satisfied when it is paid in full or completed or when partial payment is accepted. A winning party may accept less than the full amount of a judgment to avoid an appeal or to obtain immediate recovery on a judgment that may not be easily collectible.

F. Execution of Civil Judgment

If the losing party does fail to pay or refuses to pay a money judgment, the victorious party can readily enforce the judgment. A variety of remedies and methods to enforce a judgment exist by statute and rule. Common state remedies include civil execution, garnishment, liens, attachment, replevin, and other forms of enforced collection. If a case results in an injunctive decree, the order may be monitored and enforced through equitable remedies or contempt.

G. Entry of Criminal Judgment

A verdict of not guilty will be entered as a final judgment. A verdict of guilty does not necessarily mean a judgment of guilty will be entered and reflected on a defendant’s record. The final outcome depends on the applicable law.

A judge may:

• Stay entry of judgment until the completion of the appeal;
• Stay entry of a judgment and continue the matter for later dismissal if defendant complies with probation terms;
• Enter judgment of guilty, stay imposition of sentence, and place defendant on probation;
• Enter judgment, impose a sentence, and stay execution of sentence with probation;
• Enter judgment and stay sentencing until after the appeal; or
• Enter judgment, impose and execute a sentence.

Sentencing options are based on statutory laws, judicial or legislative guidelines, and constitutional provisions. Other outcomes may be available through plea bargaining, including nolo contendere or a related plea, in which the defendant may not admit guilt but acknowledges committing specific illegal acts and accepts the consequences of being convicted.

Appeals

A. Judicial Appeals

Advocates are involved directly or indirectly in appellate practice. All advocates must make certain that a record of appealable issues has been properly preserved. See § 3.12. Many trial and hearing lawyers write the appellate brief and argue the appeal. Other lawyers have another member of their firm who specializes in appellate practice participate in the appeal. Still other lawyers refer the appeal to another law firm. It is the client, of course, who decides which attorney will handle the appeal. The winning party usually stays with the winning counsel. The losing party may decide that a change in counsel and expertise may be what is needed to improve the chances of succeeding on appeal.

Clients also decide, in consultation with their attorney, whether an appeal should be taken or whether a cross-appeal should be filed if the opposing party appeals. An explanation of the appellate process and the decision of whether to appeal extends beyond the scope of this book. There are several important appellate considerations that an advocate needs to understand, and the remainder of this chapter explains these matters.

B. Administrative Appeals

Administrative decisions are usually appealable. Some decisions are appealable to another level of the administrative agency and reviewed by an administrator or administrative judge. Other administrative decisions are appealable to a judicial judge.

C. Arbitration Reviews

Arbitration awards are final and binding and are reviewable by a court in limited circumstances. A party may seek to modify or vacate an award on limited grounds specified in federal and state arbitration acts. The reasons are narrower in scope than judicial appellate grounds and include:

• The award was procured or obtained by corruption or fraud.
• The arbitrator exceeded the power provided by the agreement, the rules, and the law.
• The losing party was denied a fair opportunity to present relevant, reliable evidence.
• The arbitrator did not follow the applicable substantive law.
• Manifest injustice under the law has occurred.

These limited grounds protect a party from being denied a fair arbitration proceeding. The judge who considers a motion to vacate or modify is limited to these grounds and cannot second guess the arbitrator or change the award because the judge disagrees with the arbitrator. Nor may a court reverse or alter the factual determinations of the arbitrator.

A party seeking to modify or vacate an award needs to bring an action in a court with jurisdiction. There is no direct appeal of an arbitration award to a judicial appellate panel. An order by a judge granting or denying a modification or vacation motion can be appealed to an appellate court. Alternatively, parties may agree in an arbitration agreement to appeal an award to an arbitration panel. A party cannot collaterally attack an award by bringing a lawsuit against the adverse party or against the arbitrator or arbitral administrator, who are immune from such actions.

D. Whether to Appeal

The major factors that influence the decision whether a verdict or order ought to be appealed include the following:

• Type and degree of error,
• The economic resources of the client,
• The chances of appellate success,
• The risks of losing on appeal, and
• The probability of a final settlement.

Legal information software (e.g., GenAI and LLM-backed software and legal databases) can provide statistical data regarding how often and under what circumstances a state or federal appellate court will review, affirm, or reverse post-trial motions.

1. Type and Degree of Error

As noted above, a party is entitled to a fair trial and not a perfect one. Mistakes and errors occur in every case. Immaterial or inconsequential mistakes do not support the granting of a new trial or hearing or a reversal on appeal. The errors must be serious that adversely affect the outcome of the case to win on appeal. There are three types of errors jurisdictions recognize:

a. Unfair Prejudicial Error

Prejudicial error occurs when the substantial rights of a party have been negatively affected. Errors that unfairly deprive a party of justice may be sufficient to overturn the result. An example of prejudicial error is the failure of the trial judge to allow a key witness to testify who has relevant and credible testimony. Another example is the refusal to give a requested jury instruction that explains the law on a pivotal issue.

b. Harmless Error

An error that is not deemed to be prejudicial is known as harmless error. This type of mistake may have occurred at the trial or hearing but did not deprive a party of a substantial right and is not sufficiently harmful to warrant appellate relief. See § 12.5(A). An example of harmless error is an incorrect ruling regarding the use of leading questions on direct examination. Another example is the refusal to allow extra time for summation.

c. Plain Fundamental Error

The “plain error” doctrine allows an appellate court to review a mistake even though the basic error was not properly preserved in the case. This type of mistake must severely prejudice a party and deny a fundamental right. An example of plain error is a prosecutor commenting in summation on the refusal of the defendant to testify and explain their innocence.

2. Economic Resources

A client who has expended substantial resources for a case may decide it is not financially worthwhile to take an appeal. A losing party may be able to negotiate the payment of an amount less than the judgment by agreeing not to appeal. The winning party may accept less than the judgment to avoid the risks of an appeal.

3. Chances of Success

The chances of success depend upon the nature of the issues to be appealed and the prior decisions of the appellate court. There may be little precedent to support reversal. Court statistics reveal that certain types of appeals have a greater chance of being successful. For example, issues of intricate or questionable law may be reversed a significant percentage of the time by some courts or less often in other jurisdictions. Advocates need to consider specific precedents and prior decisions of the appellate courts. Data obtained from reliable sources regarding outcomes of appeals can provide an objective basis for an appeal decision. As explained previously, GenAI, LLM-backed legal tools, and legal information databases can summarize decisions in similar cases, offer potential strategies on appeal, and also provide statistics regarding chances of affirmance or reversal.

4. Impact of Losing on Appeal

Some cases involve issues that need to be decided on appeal. Other issues are better resolved through further settlement efforts. If the appellate risks significantly outweigh the potential favorable outcome, it may be advisable not to pursue the appeal and to compromise and settle.

5. Probability of Settlement

Cases on appeal can be resolved through negotiations or mediation, or both. The winning party or parties savoring victory may be disinclined to compromise, but an assessment of the chances of success and the risks of losing the appeal may prompt an interest in a final settlement. Similarly, the losing party or parties may be more motivated to settle at this stage.

E. Finality

The general rule is that a case is not appealable until a final judgment, order, or award has been entered. This requirement prevents piecemeal appeals from rulings made as the trial or hearing progresses. Exceptions authorizing intermediate appeals are explained in the following sections.

The entry of the final decision permits an appeal to be taken from the judgment and from any order entered during the action prior to the entry of judgment. The final judgment incorporates all previous orders, rendering all case rulings appealable. Rulings on post-trial or post-hearing motions that occur after entry of final judgment need to be included in an appeal to ensure the preservation of appealable issues.

F. Intermediate Appeals

Pretrial and trial orders entered by a judge are generally not appealable during the trial. Prehearing and hearing orders entered by an arbitrator or administrative law judge are similarly not appealable, if at all, until after the entire action is over. Case rulings and decisions may be commonly appealable as of right after a final judgment has been entered. Some orders may be appealable prior to the conclusion of a case only if an allowance permitting an intermediate appeal occurs, such as the following.

1. Immediate Appeal Designated by Federal or State Law

Orders immediately appealable vary among jurisdictions but generally include preliminary orders that significantly affect the outcome of a case and interlocutory orders involving temporary injunctive remedies. These provisions recognize that in order for justice to be conserved or the status quo to be preserved, an order needs to be promptly appealable.

2. Collateral Order Doctrine

Many jurisdictions permit a limited number of collateral orders to be appealable. These orders are final determinations of claims collateral to and severable from the main claims in a case, but which are too important to be denied review and too independent of the case to require that appellate review be deferred until the entire action is adjudicated. The scope of these appealable orders varies among tribunals. In federal courts, appealable interlocutory orders include rulings granting or denying significant motions in limine and orders denying joinder of claims for essential parties. In state courts, appealable orders may include critical privileged disclosure orders and major procedural orders affecting important substantive matters.

3. Petition for Discretionary Review

Some tribunals permit a party to bring a petition for discretionary review requesting the immediate review of a ruling that substantially affects the outcome of a case. The applicable statute or rule describes the scope of the appeal, which typically includes decisions appealable under the collateral order doctrine.

4. Writs of Mandamus or Prohibition

All jurisdictions permit a losing party to request the appellate court to order a judge to do something (mandamus) or to restrain a judge from doing something (prohibition). These writs are available in extraordinary situations where significant rights of the parties are being adversely affected, or substantial injustice occurs, or the judge makes a bizarre ruling. For example, these writs may be available to review a motion granting or denying a controversial change of venue or pretrial rulings including or excluding highly critical or prejudicial evidence. Administrative law judges and arbitrators may be subject to a writ in extraordinary cases.

5. An Order That Determines Some Civil Claims

An appeal may be taken from a judgment entered in a multiple party or multiple claim case if the judge declares there is no reason to delay entry of judgment on fewer than all of the parties or claims and enters a judgment. Federal Civil Procedure Rule 54(b) and similar state rules codify this procedure and recognize that a judge may make a final decision in a complex and lengthy case that ought to be appealed before completion.

6. Intermediate Appeals in Criminal Cases

A defendant’s constitutional right to a speedy trial and the procedural rules of a jurisdiction determine whether an intermediate appeal is available. The government or the defendant may appeal pretrial rulings if they have a substantial effect on the trial proceedings or results.

G. Standard of Review

The standard of review is the criteria employed by the appellate court in determining whether to affirm or reverse the challenged decision. The party losing an issue carries the burden of establishing that the applicable standard, justifying a reversal, has been met. There are three common standards of review depending upon the type of error:

1. De Novo. If the issue is a legal issue and involves an error of law, the appellate court will review the ruling “de novo,” that is: the appellate court independently determines the law “anew.” The prior legal ruling by the trial court has no bearing on this decision.

2. Clearly Erroneous. If the issue is a factual issue and involves a factual error, the appellate court will review the finding of fact to determine if it is “clearly erroneous,” that is: if it is against the manifest weight of the evidence.

3. Abuse of Discretion. If the issue is a mixed question of law and fact and/or involves a discretionary or procedural decision, the appellate court will reverse only if there is an “abuse of discretion,” that is: there is no reasonable basis to support the trial judge’s ruling.

Appeal Procedures

A. Initiating the Appeal

An appeal is usually initiated by filing a “notice of appeal” in the trial court or tribunal and with the appellate court within a prescribed period of time, for example, 30 days in a civil appeal or 10 days in a criminal appeal. Many appellate courts also require the submission of a statement of the appeal or a docketing statement or the completion of an information form. These documents provide the appellate court with information about the judgment and orders appealed from and the issues raised in the case.

B. Appeal Bonds

In civil appeals, the appellant may need to post a cost bond or a supersedeas bond, or both, with the notice of appeal. A cost bond ensures payment to the appellee if the appellee prevails on appeal and ordinarily covers the costs of printing or submitting the briefs. An appellant typically has to file a cost bond, or provide other security, to ensure payment of these costs incurred by the appellee on appeal. The specific amount of this cost bond is established by statute or rule or by motion brought by the prevailing party.

An appellant may also have to file a supersedeas bond, or provide other security, to ensure that the judgment, enforcement of which is suspended during appeal, will be paid or enforced if the appellant loses the appeal. A supersedeas bond makes whole the prevailing party if the appeal is unsuccessful. See Fed. R. Civ. P. 62 and Fed. R. App. P. 7 and 8. The amount of the bond is often equal to the amount of the money judgment and reflects the risk to the prevailing party during the appeal process. The supersedeas bond is usually secured by one or more sureties that submit to the jurisdiction of the tribunal and will pay the judgment amount if the appellant loses and fails to pay.

Some jurisdictions do not require cost or supersedeas bonds unless the prevailing party brings a motion for these bonds. The parties to the appeal may stipulate to alternative methods of security instead of the posting of a bond. An appellee may not be overly concerned with either bond if the appellant has substantial financial assets or will not become insolvent.

C. Stays

The filing of an appeal notice does not stay enforcement of a judgment or order. If the appellant has not obtained a stay of execution from the trial or hearing tribunal, the appellant will need to obtain a stay from the appellate court during the pendency of the appeal. See § 12.6(A).

D. Record

The appellant usually must order the record for the appeal from the court reporter. The record typically consists of the pleadings, rulings, and orders appealed from, relevant portions of the case transcript, and related exhibits. The appellee may also designate other parts of the record to be included. The mechanics of transmitting the record varies among jurisdictions, and usually requires a cooperative effort among the appealing parties, the tribunal administrator, and the appellate clerk.

The appellant also must make arrangements with the court reporter to transcribe those portions of the case record needed for appellate review, if daily or ongoing transcripts have not been maintained during the trial. Only those portions of the transcript that contain the issues raised on appeal need to be included in the appellate record. The appellant ordinarily provides a list of the designated portions of the record that need to be transcribed or provided, and the appellee may designate other parts to be provided. The appealing parties must make mutual financial arrangements with the reporter.

E. Appeal Schedule

After the completion of these procedural steps, the appellate court provides the advocates with a briefing schedule indicating the deadlines for submission of the briefs and the oral argument, if allowed. And, with that, the advocates and parties are on their way to an intermediate appellate or a supreme court. And that is a grand adventure beyond this book.

Advocacy Supplement

An example of jury instructions and a deliberation in a civil jury trial appears in the Supplement to Trial Advocacy Before Judges, Jurors, and Arbitrators. The transcript of the Rita Riley v. Garfield House Apartments jury trial demonstrates approaches that are explained in this Chapter. Commentary with the transcript explains the jury trial procedures.

INTERACTIVE ADVOCACY

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