Appellate Insights

After receiving an adverse verdict, clients inevitably ask, “What’s our next step?”  In some situations, the answer may be going straight to the Court of Appeal.  But other situations warrant a round of post-judgment motions in the trial court first.  Determining which path to follow is case specific, encompassing numerous factors.  Here are a few to consider:

• Juror misconduct arguments and some types of excessive damages arguments require a new trial motion. These generally can’t be raised for the first time on appeal.

• A sufficiency-of-the-evidence argument doesn’t have to be raised in a new trial motion – but the trial court has more leeway in evaluating the evidence than the Court of Appeal does.

• A motion for judgment notwithstanding the verdict isn’t required to preserve a substantial evidence challenge for appeal.

• Be careful what you wish for:  A new trial might yield a better result, but consider whether the result could instead be worse.

▶ The practical message:  The deadlines for post-judgment motions are very short.  Once the verdict comes in, quickly assess whether to pursue further relief in the trial court, or to go straight to the Court of Appeal.