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Tips for Appeals––Post Trial Motion –Part II

You have made it through trial and you have a verdict or a decision after a bench trial. You carefully preserved all potential appellate issues at every stage (by making objections at trial, submitting written motions for nonsuit and directed verdict, and points for charge). Now what do you do?

Do I have to file a post-trial motion?

 The answer is almost always “yes.”

Pennsylvania Rule of Civil Procedure 227.1 provides:

(c) Post-trial motions shall be filed within ten days after (1) verdict, discharge of the jury because of inability to agree, or nonsuit in the case of a jury trial; or (2) notice of nonsuit or the filing of the decision in the case of a trial without jury.

If a party has filed a timely post-trial motion, any other party may file a post-trial motion within ten days after the filing of the first post-trial motion.

In the average two-party jury or bench trial Rule 227.1’s requirement is clear.  What become challenging are cases that are not black and white––for example, where neither side gets what it wants. Again, the mantra for handling all aspects of appeals is to use belt and suspenders. When in doubt, file a post-trial motion. Even if it is unnecessary, at the very least it will require you to focus on the appellate issues and it will give you a leg up on your Rule 1925(b) Statement.

 You can always withdraw a post-trial motion if the case settles.

When must I file a post-trial motion?

 You have ten days after the verdict or notice of non-suit is announced (not ten days after the verdict is recorded on the docket, notice of nonsuit or the filing of the decision in a bench trial). You also have ten days to file a post-trial motion if the other side files first. Because a post-trial motion can be filed electronically, you (and your client) can be caught at a disadvantage if you wait to the last moment to make your decision.

The only time you don’t have to file a post trial motion is where the trial court hasn’t held a hearing or considered evidence. The classic example is Newman Devel. Grp. of Pottstown, LLC v. Genuardi’s Family Market, Inc., 18 A.3d 1182, 1188 (Pa. Super. 2011), reversed, Newman Development Group of Pottstown, LLC v. Genuardi’s Family Market, Inc., 52 A.3d 1233, 1244, 1247 (Pa. 2012). Newman is the kind of case that gives lawyers nightmares. But it is a good example of a trial court decision (recalculation of damages based on explicit instructions from the appellate court without any additional hearing) that did not require a post trial motion. Most cases do. When in doubt, file!

Should I ask one of my colleagues to review my post-trial motion?

It is always good practice to have a second set of eyes review your post-trial motions. Trial lawyers often fall in love with their own views in the trenches. It is good to get some perspective from a trusted colleague. The post-trial motion is a critical component of issue preservation, but it cannot salvage issues that haven’t been raised by timely objections, motions and points for charge during trial. The post-trial motion is your first opportunity to lay out all your potential appellate issues––asking for perspective as to which issues seem like winners or losers on appeal can be very useful.

 

Issue preservation enters a new phase after trial. You may be left with a great number of potential issues and you have to start the process of winnowing down––for example, which are issues committed to the broad discretion of the trial court?  Which are a matter of law and will get de novo review by the appellate court? Getting perspective from colleague can help you limit and focus potential issues on appeal.  The trial court’s ruling on your post trial motion also will help you decide between potential winners and obvious losers.

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Thoughtful preparation of your post trial motion may be critical to success on appeal. In one sense, the post-trial motion is the open end of a funnel that leads to increasingly focused and limited issues in the Rule 1925(b) statement that ultimately culminate in your appellate brief. For example, you might have 20 issues in your post trial motion, after receiving the trial court ruling reduce the issues down to 10 in your 1925(b) statement, and then raise a maximum of 3-4 in the appellate brief. Make certain that you take the time to carefully weigh every potential appellate issue along the way.

Read final article of this three part series: Tips for Appeals––Notice of Appeal and 1925 Statement Part III

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James (Jim) C. Sargent is a Partner and Co-Chairman of Lamb McErlane’s Appellate Advocacy Group and Litigation Department.  Jim represents small businesses, as well as major national and multinational manufacturers in litigation and appeals.  His practice includes commercial contracts, real estate and banking law, construction litigation, municipal law, restrictive covenants, employment contracts, as well as condemnation matters. Jim also offers mediation services in commercial/construction/business ownership disputes. jsargent@lambmcerlane.com. 610-701-4417.