ppoosstt ttrriaial l momottionionss€¦ · advanced civil litigation class 14 slide 2 postpost...

Advanced Civil Litigation Class 14 Slide 1

Post Post Trial Motions Trial Motions n n Before Verdict Before Verdict

n n Judgment as a matter of law Judgment as a matter of law n n After Verdict After Verdict

n n Judgment notwithstanding the verdict Judgment notwithstanding the verdict n n New trial New trial n n Increase or decrease damages Increase or decrease damages

n n Standards of review Standards of review n n To reverse a jury To reverse a jury’’s verdict, the judge must believe that the s verdict, the judge must believe that the jury was so unreasonable that no reasonable jury could jury was so unreasonable that no reasonable jury could have rendered the verdict that the jury did have rendered the verdict that the jury did

n n All evidence must be reviewed in the light most favorable All evidence must be reviewed in the light most favorable to the other party to the other party

n n If there If there’’s an issue of fact that is unclear, the jury s an issue of fact that is unclear, the jury’’s s decision gets the benefit of the doubt as to that issue decision gets the benefit of the doubt as to that issue


Post Post Trial Motions: New Trial Trial Motions: New Trial n n Grounds Grounds

n n Mistakes by the trial judge in procedure (e.g., evidence issues) Mistakes by the trial judge in procedure (e.g., evidence issues) n n Verdict against the weight of the evidence Verdict against the weight of the evidence n n Newly discovered evidence Newly discovered evidence n n Excessive or inadequate damages Excessive or inadequate damages

n n Judges sometimes use this leverage to change the amount of an Judges sometimes use this leverage to change the amount of an award award

n n In a jury trial In a jury trial n n Juries get more deference in deciding issues of fact from judges Juries get more deference in deciding issues of fact from judges and appellate courts and appellate courts

n n In a non In a non jury trial jury trial n n When the judge is a trier of fact, an appellate court will look When the judge is a trier of fact, an appellate court will look at at the grounds for the decision the grounds for the decision n n But will still give some deference since the trial judge is in t But will still give some deference since the trial judge is in the best he best position to know the nuances of the case position to know the nuances of the case


Judgment and Bill of Costs Judgment and Bill of Costs n n Obtaining a judgment from the court Obtaining a judgment from the court

n n This is generally a formality and requires the party to prepare This is generally a formality and requires the party to prepare the judgment and submit it to the court for signature the judgment and submit it to the court for signature

n n Preparing a bill of costs Preparing a bill of costs n n In many cases, the losing side must pay the winning sides In many cases, the losing side must pay the winning sides costs costs

n n The winning side prepares a list of court costs, including: The winning side prepares a list of court costs, including: n n Filing fees Filing fees n n Stenographer fees Stenographer fees n n Witness fees Witness fees

n n The other side can object. Otherwise, the clerk enters it The other side can object. Otherwise, the clerk enters it n n Attorney fees are usually not recoverable, but are in some Attorney fees are usually not recoverable, but are in some cases where a statute allows or where the judge thinks the cases where a statute allows or where the judge thinks the case was frivolous case was frivolous


Enforcing a Judgment Enforcing a Judgment n n Key terms Key terms

n n Judgment creditor Judgment creditor n n Judgment debtor Judgment debtor

n n Post Post judgment interest (between judgment and judgment interest (between judgment and payment) is recoverable payment) is recoverable n n Pre Pre judgment interest is generally not recoverable judgment interest is generally not recoverable

n n Lis Lis Pendens Pendens n n The plaintiff can seek to have property that is the subject The plaintiff can seek to have property that is the subject of the proceeding attached pending trial of the proceeding attached pending trial

n n The judgment The judgment proof debtor proof debtor n n Consider whether the debtor can afford to pay anything Consider whether the debtor can afford to pay anything before trying to collect in the first place before trying to collect in the first place


Locating the Judgment Creditor Locating the Judgment Creditor’ ’s Assets s Assets n n You need to gather info on debtor You need to gather info on debtor’ ’s assets including: s assets including:

n n What property is owned only by the debtor What property is owned only by the debtor n n Jointly owned property (may be protected) Jointly owned property (may be protected) n n Real Property in a different state or country Real Property in a different state or country

n n Methods by which to obtain this information include Methods by which to obtain this information include n n Post Post judgment interrogatory judgment interrogatory n n post post trial request for production of documents trial request for production of documents n n post post trial deposition trial deposition n n supplementary proceedings supplementary proceedings n n Interrogatories in Aid of Judgment Interrogatories in Aid of Judgment

n n Look into recent history of transfers to determine any Look into recent history of transfers to determine any fraudulent transfers that may have been made fraudulent transfers that may have been made


Collecting a Judgment Collecting a Judgment n n Supersedeas Supersedeas bond bond

n n This may be required of the debtor to This may be required of the debtor to secue secue a stay of execution a stay of execution of the judgment of the judgment

n n First Letter to Judgment Debtor First Letter to Judgment Debtor n n Be firm, but not nasty Be firm, but not nasty n n Offer a chance to call to settle Offer a chance to call to settle

n n Make sure to include appropriate contact info Make sure to include appropriate contact info n n Describe legal action that will be taken in response to failure Describe legal action that will be taken in response to failure to to pay or negotiate pay or negotiate

n n Follow Follow Up Letter to Judgment Debtor Up Letter to Judgment Debtor n n Only threaten legal action you Only threaten legal action you’ ’re prepared to take re prepared to take n n Be careful not to contact a person you know is represented by Be careful not to contact a person you know is represented by counsel counsel

n n Don Don’ ’t send collection letters without being aware of the FDCPA t send collection letters without being aware of the FDCPA rules rules


Collecting from a Deadbeat Judgment Creditor Collecting from a Deadbeat Judgment Creditor

n n Methods of collecting property owned by the judgment Methods of collecting property owned by the judgment debtor debtor n n Execution Execution

n n This is the general process of securing satisfaction of a This is the general process of securing satisfaction of a judgment judgment

n n Levy Levy n n You need to get a writ issued by the court ordering law You need to get a writ issued by the court ordering law enforcement to seize property of the debtor enforcement to seize property of the debtor’ ’s and sell it s and sell it

n n The proceeds are used to pay off the judgment The proceeds are used to pay off the judgment n n Receivership Receivership

n n The debtor The debtor’ ’s property can be held until its income (or other s property can be held until its income (or other assets) are used to pay the judgment assets) are used to pay the judgment

n n Writ of Execution for Specific Property Writ of Execution for Specific Property n n Mostly relevant when the property is the subject of the Mostly relevant when the property is the subject of the action action


Garnishment of Wages Garnishment of Wages n n Application for Writ of Garnishment Application for Writ of Garnishment

n n This will generally be sought and issued only as a last This will generally be sought and issued only as a last resort. The court orders the debtor resort. The court orders the debtor’’s employer to pay a s employer to pay a percentage of the salary directly to the creditor. percentage of the salary directly to the creditor.

n n Supporting Affidavit Supporting Affidavit n n This must state that This must state that

n n The judgment was obtained The judgment was obtained n n It has not been satisfied after attempts to collect it It has not been satisfied after attempts to collect it

n n Basic Garnishment of Wages Rules Basic Garnishment of Wages Rules n n Garnishment may not exceed Garnishment may not exceed

n n (1) 25 per cent of disposable earnings, or (1) 25 per cent of disposable earnings, or n n (2) the amount by which disposable earnings exceed thirty (2) the amount by which disposable earnings exceed thirty times the Federal minimum hourly wage times the Federal minimum hourly wage


Judgments: Other Issues Judgments: Other Issues n n When a judgment is entered, it When a judgment is entered, it’ ’s generally good for 10 s generally good for 10 years. Then it can be re years. Then it can be re filed filed

n n Domesticating a Judgment Domesticating a Judgment n n This is necessary to import a judgment from a different This is necessary to import a judgment from a different state state n n States must accept other state States must accept other state’ ’s judgments, but the process s judgments, but the process required in the jurisdiction must be followed required in the jurisdiction must be followed

n n Obtaining an Exemplified Judgment Obtaining an Exemplified Judgment n n This is an authenticated copy of the judgment provided by This is an authenticated copy of the judgment provided by the court (for a fee) that can be used in execution the court (for a fee) that can be used in execution

n n Keeping Track of Collections of Judgment Keeping Track of Collections of Judgment n n The file should be organized and kept up to date just as The file should be organized and kept up to date just as though the trial were still ongoing though the trial were still ongoing


Appeals Appeals Rules and Standards Rules and Standards n n Questions of Law Questions of Law

n n This is a question of application of the law by the judge This is a question of application of the law by the judge n n E.g., issues of evidence or jury instructions E.g., issues of evidence or jury instructions

n n Appellate courts review many questions of law Appellate courts review many questions of law de novo de novo n n many evidentiary issues that are fact based are reviewed many evidentiary issues that are fact based are reviewed only for only for “ “abuse of discretion abuse of discretion” ”

n n Questions of Fact Questions of Fact n n The appellate court gives wide deference to the trier of The appellate court gives wide deference to the trier of fact on these issues, but can reverse if, as a matter of law, fact on these issues, but can reverse if, as a matter of law, the only legal conclusion is the opposite of the verdict the only legal conclusion is the opposite of the verdict

n n An error by the lower court judge does not automatically An error by the lower court judge does not automatically mean reversal. mean reversal. n n Reversible error requires that the error played an Reversible error requires that the error played an important role in the case and the judgment important role in the case and the judgment


Appellate Procedure Checklist Appellate Procedure Checklist n n Federal Rules of Appellate Procedure govern in federal Federal Rules of Appellate Procedure govern in federal courts courts

n n Steps in the process include: Steps in the process include: n n Notice of Appeal must be filed with the appropriate court Notice of Appeal must be filed with the appropriate court and sent to the opponent and sent to the opponent

n n Check out the Check out the FRAP FRAP’’s s time limits time limits n n File bond, if necessary File bond, if necessary n n Order a transcript of the trial and designate the trial record Order a transcript of the trial and designate the trial record n n Send all papers to the clerk of the court of appeals Send all papers to the clerk of the court of appeals n n Draft the appellate brief Draft the appellate brief n n File for extension of time if necessary File for extension of time if necessary n n Record oral argument time and format Record oral argument time and format n n Rehearing or further appeal if you lose the appeal Rehearing or further appeal if you lose the appeal


Assisting with the Appeal Assisting with the Appeal n n Deadline Control Deadline Control

n n Managing the timeline is an important task a paralegal can Managing the timeline is an important task a paralegal can supervise and control supervise and control

n n Appeal Management Appeal Management n n Make sure each person knows what their role will be in the Make sure each person knows what their role will be in the process process n n An attorney will make these decisions An attorney will make these decisions

n n Legal Research Legal Research n n Verifying the Record Verifying the Record n n Indexing and Summarizing the key part of the record Indexing and Summarizing the key part of the record

n n The witness transcripts, exhibits, etc., should be organized The witness transcripts, exhibits, etc., should be organized so that a person working on a brief can easily recall so that a person working on a brief can easily recall


Assisting with the Appellate Brief Assisting with the Appellate Brief n n Legal research Legal research

n n Finding appropriate cases and statutes Finding appropriate cases and statutes n n Preparing rough drafts of sections of the briefs Preparing rough drafts of sections of the briefs

n n Or, for less experienced paralegals, drafting memos Or, for less experienced paralegals, drafting memos explain to attorneys or other paralegals what legal explain to attorneys or other paralegals what legal research exists in the area research exists in the area

n n Preparing a table of authorities, a table of contents and Preparing a table of authorities, a table of contents and an index for the brief an index for the brief

n n Preparing basic parts of the brief such as: Preparing basic parts of the brief such as: n n State of jurisdiction State of jurisdiction n n Statement of question to be considered Statement of question to be considered n n Conclusion and relief sought Conclusion and relief sought

n n Preparing final brief for filing, including putting together Preparing final brief for filing, including putting together the exhibits, etc. the exhibits, etc.


Assisting with Preparation for Oral Arguments Assisting with Preparation for Oral Arguments

n n Preparing an Preparing an “ “oral argument notebook oral argument notebook” ” can be can be invaluable during oral arguments because the arguing invaluable during oral arguments because the arguing attorney can use it for quick reference. It should include attorney can use it for quick reference. It should include separate indexed sections for: separate indexed sections for: n n Key statutes that are relevant, organized by topic Key statutes that are relevant, organized by topic n n Synopses of relevant cases cited in both briefs, organized Synopses of relevant cases cited in both briefs, organized by topic by topic

n n Sections of relevant trial record, organized by topic Sections of relevant trial record, organized by topic n n Copies of important documents and exhibits, organized by Copies of important documents and exhibits, organized by topic topic

n n A paralegal can also serve as a A paralegal can also serve as a “ “sounding board sounding board” ” for the for the lawyer making oral arguments to practice with. You can lawyer making oral arguments to practice with. You can assume the role of the judge and ask questions. assume the role of the judge and ask questions.

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