1. Read Federal Rules of Civil Procedure at http://en.wikipedia.org/wiki/Federal_Rules_of_Civil_Procedure

2. Read grounds for new trial - http://www.west.net/~smith/trials.htm

Grounds for New Trials

Motion for New Trial. The trial judge has the power to grant a motion for a new trial when errors or irregularities have occurred during the proceedings. Under the federal rules a motion for new trial must be served within 10 days from the entry of judgment (FRCP 59(b).) The most frequent ground for granting of a new trial is that the verdict is against the weight of the evidence. Also, any prejudicial error of law which would be ground for a reversal on appeal will also be a ground for a new trial.

Grounds for a New Trial

(1) Irregularity of the proceedings;

(2) Misconduct of jury;

(3) Accident or surprise;

(4) Newly discovered evidence;

(5) Insufficient evidence;

(6) Verdict against law;

(7) Error in law;

(8) Excessive or inadequate damages. (Cal.Code.Civ.Proc. § 657.)

FRCP 59 does not list the grounds for which a new trial may be granted. (Wright § 95) In federal courts common law must be looked to in determining the available grounds.

Verdicts Against the Weight of the Evidence

Motion for JNOV Like the motion for directed verdict, this motion raises only the legal question whether the jury could decide reasonably either way. It differs from the motion for a new trial where the court has discretion to set aside a verdict and grant a new trial even if the verdict is supported by substantial evidence. The motion for JNOV, on the other hand, must be denied if there is any substantial evidence supporting the verdict. (Wright § 95)

FRCP 49 governs types of verdicts. There are two types. General and special. A general verdict is one in which the jury makes a general finding for one party or the other. It merely announces which party wins and if it is the plaintiff how much he recovers. The drawback to such a verdict is that there is no way of telling whether a jury has performed its function properly from a general verdict.

Excessive & Insufficient Damages: Remittitur & Additur

When a party moves for a new trial the judge may state that he will grant the motion unless the opposing party agrees to accept a specified reduction or increase in the verdict. The power to reduce damages is called remittitur and is recognized in both the state and federal systems. Remittitur is a limited exception to the sanctity of jury fact-finding. It allows trial judges to reduce damages, but only when the award is grossly excessive. Remittitur has the effect of merely lopping off an excess. Additur, the increase of a judgment, is not recognized in the federal courts having been held a violation of the 7th Amendment. Most courts have ruled that the party who accepts the remittitur or additur cannot appeal because he has acquiesced in the judgment. Some courts have rejected this limitation and others have recognized the party's right to cross-appeal if the losing party first appeals. (Friedenthal § 12.4)

Mechanics of Post-Trial Motions

Denial of a motion for new trial results in a judgment that is final and appealable. The grant of such a motion does not. In order to avoid piecemeal appeals the federal rules provide that if a new trial motion is granted, but only as an alternative to the grant of a JNOV motion, then both rulings may be appealed immediately. (FRCP 50(c)(1).) If a new trial is granted and the JNOV motion is denied, then the case must proceed to a new trial, and the denial of the JNOV cannot be reviewed until after the new trial has concluded. (Friedenthal §12.3)

May an appellate court order JNOV without giving the trial court which has previously upheld the verdict the opportunity of deciding that a new trial should be held instead? Yes. There is nothing in Rule 50(d) indicating that the court of appeals may not direct entry of JNOV in appropriate cases. Although a trial judge is in a better position to rule on a motion for new trial this does not justify an ironclad rule that the court of appeals should never order dismissal or judgment for defendant when the plaintiff's verdict has been set aside on appeal. There are situations where the defendant's grounds for setting aside the verdict raise questions of subject matter jurisdiction or dispositive issues of law which if resolved in defendant's favor, must necessarily terminate the litigation. (Neely v. Martin K. Eby Construction Co., 386 U.S. 317 (1967)

The motion for a directed verdict is an absolute prerequisite to a subsequent grant of JNOV. (Wright, § 95) If a party fails to make a directed verdict motion, a JNOV is not available. (Friedenthal § 12.3)

Post Judgment Relief in the Trial Court

A FRCP 60(b) motion to vacate is not a substitute for appeal. Rule 60(b) requires a showing of exceptional circumstances or a grievous wrong evoked by new and unforeseen conditions. Appellate review of a denial of a Rule 60(b) motion is limited to determining whether the district court abused its discretion. "Rule 60(b) was not intended to provide relief for error on the part of the court or to afford a substitute for appeal. Nor is a change in the judicial view of applicable law after a final judgment sufficient basis for vacating such judgment entered before announcement of the change." (Title v. U.S. 263 F2d 28, 31)

3. Read preserving your appeal - http://www.dailyjournal.com/callawyer/index.cfm?sid=&tkn=&Secure=&Mcle=yes&eid=281846&evid=1&number=1