Attorneys sometimes express hesitancy at the notion of filing post-trial motions based upon a concern that, unlike in an appeal involving appellate judges determining whether what happened at trial was appropriate, a post-trial motion requires the trial judge to decide that something wrong took place under her watch. Ultimately, however, that concern is exactly the point of the post-trial motion. And sometimes getting back up after a loss requires standing up and saying, in essence, “Judge, something wrong happened here; let’s fix it.” Post-trial motions allow for that opportunity.
Post-trial motions typically have very short turnaround periods, often 10 days. Thus, while the attorney’s memory needs to be “short,” meaning able to get quickly past the deflation of losing at trial, that memory also has to be good, meaning able to accurately reflect issues that may require a new trial or the reduction of a verdict. Just as an attorney takes each step throughout a case in preparation for an eventual closing argument or summary judgment motion, during trial, an attorney should be constantly cognizant of the potential need for post-trial motions or appeal. That requires preserving legal issues, standing by objections, and—most specifically for post-trial motions—taking copious notes.
Often in the heat of trial, it can become tough to remember to detail everything that is happening: who testified to what, what rulings were made to objections and everything that came into evidence. Some issues that may lead to post-trial motions are obvious, like when an attorney is asked for case law to support an argument but does not have the support available before the end of trial.
For less obvious issues, because post-trial motions are often completed without a trial transcript due to the short period with which they must be filed, having the ability to accurately recount trial events is paramount. Practice and having a system help accomplish this goal. If an attorney is fortunate enough to have a co-counsel, law clerk, paralegal, or intern present during trial, it must be made clear to that person exactly what information needs to be recorded and how to ensure that the information recorded is made available to the attorney in a timely fashion.
If an attorney does not have someone available to take notes during trial, an attorney has to be mindful to take detailed notes of significant objections as well as how granted or denied motions in limine may have affected the trial. Points of post-trial contention will often be those that would likely become appellate issues, and those issues have to be preserved.
In addition to their legal benefits, post-trial motions can aid in settlements by keeping a plaintiff’s case alive or providing the possibility that a verdict can be reduced. Critically, post-trial motions are important for individual professional development because they force an attorney to get right back out there, to learn, to grow, to think, and to move forward. Most importantly, post-trial motions have the ability to right a wrong that happened in the course of a trial and shift toward a just result.
