Post Judgement Actions - Module 5 of 5

Post Judgement Actions - Module 5 of 5


Module 5: Post Judgment Actions


When the trial ends, that may not be the end of the action. That’s when the post-judgment actions begin. They come in two phases: post-judgment motions that are controlled by the rules of civil procedure, and appeals, that are controlled by rules of appellate procedure[1].


Post-Judgment Motions

Following the court’s rendering of judgment and before appeals are filed, parties may file motions to modify or overturn the judgment. These post-trial motions are heard by the trial judge. The moving party may use these motions to: clarify points raised before or during trial; expand on arguments previously raised only in passing; fully present the strongest arguments for relief from a judgment and complete the record for appeal.

In most cases, a party must move for both judgment as a matter of law and for a new trial to preserve certain issues and arguments for appeal (for example, challenges to the sufficiency of the evidence at trial). However, even if an appeal is not being filed, a post-judgment motion also offers the losing party an opportunity to challenge an adverse judgment directly with the district court, avoiding the time and expense of an appeal.

Renewed Motion for Judgment as a Matter of Law

At the close of evidence, parties may move for judgment as a matter of law.[2] A party that loses this motion during the trial can renew this motion after the judgment is filed.[3] This renewal motion must be filed within 28 days after the trial is concluded. The judge may respond to this motion by allowing a judgment on the jury verdict, ordering a new trial or directing the entry of judgment as a matter of law. The latter may entail invalidating the jury verdict and substituting the judge’s own verdict.[4]

Motion for a New Trial

After the trial is concluded, either party may move the court for a new trial[5] on a number of possible grounds, including discovery of new evidence; jury prejudice or other fairness grounds; insufficient evidence; jury tampering; conflict of interest by the judge or any other situation in which fairness demands another trial.

At any time up to 28 days after the judgment, the judge may, on the court’s own initiative (called sua sponte), throw out the jury decision even for reasons not in the motion and order a new trial.[6] The judge can also re-open the case to hear new evidence on motion in a non-jury trial[7].

Motion to Alter or Amend the Judgment

A motion to change the judgment can be filed within the same 28-day window as other post-judgment motions[8].

Motions for Relief from Judgment

Beyond asking for a new trial or for changes in the judgment, moving parties can also ask that the court just dissolve the judgment in whole or in part under Rule 60.

Motions to Correct Clerical Mistakes

The court can correct any clerical error in writing out the judgment or any part of the file on its own or by a party’s motion.[9]


Grounds for Relief from a Final Judgment, Order, or Proceeding

There are six grounds for a motion for relief from judgment[10]. Parties have a “reasonable time” after the judgment-- sometimes up to a year-- after the entry of judgment to bring such a Rule 60(b) motion. These motions may challenge procedural aspects of the case or the evidence or verdict. The judgment is not suspended during the pendency of the motion[11].

The Rule 60(b) grounds are:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial;

(3) fraud, misrepresentation or misconduct by an opposing party;

(4) that the judgment is void;

(5) that the judgment has been satisfied, released, or discharged; that it is based on an earlier judgment that has been reversed or vacated; or that applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.

The court can also entertain motions for relief from non-parties to the action; set aside a judgment for fraud on the court; and grant relief to a party who was not personally notified of the action[12].

Unless attorney’s fees are a part of the case, attorneys can file motions for fees at any time before 14 days after the judgment is entered.[13] This motion must be backed up by law or by an agreement of the parties or some other reason to grant the motion. The party that may have attorney’s fees ordered against it can respond to the motion.[14] Judgment on this motion must include findings of fact and conclusions of law.


Appeals

Parties unhappy with the trial court results can take their cases to the courts of appeals. The appeals process is controlled by the Rules of Appellate Procedure—either the federal rules or state rules.[15] The current federal rules were promulgated by the Supreme Court in 1968 under 28 U.S.C. §2072 and other enabling statutes and have been updated since.  Although these rules control appeals, the appellate court has wide discretion to suspend them under appropriate circumstances,[16] and appeals courts may also make local rules.[17] About 15 percent of cases of any kind are appealed. Only about 9 percent of appeals of judgments in civil cases are successful.[18]

In the end, the appeals court can uphold a lower court’s decision, uphold it in part and reverse it in part, or completely reverse it. If the case is reversed, the appellate court can vacate that part of the judgment or remand it back to the lower court for a retrial on those issues.

In order to file an appeal, the appellant must first file a notice of appeal.[19] This written notice is filed with the court and sent to the appellee (the other party). It is the initial step in appealing a case. For civil cases, this notice must be filed in district court within 30 days after entry of judgment (60 days if the federal government is a party), or within 14 days after filing of a timely notice of appeal by any other party.[20] This time may be extended by motion.[21] It may also be filed before the judgment is certified, and an attorney may walk into the courtroom after the trial is concluded with a notice of appeal in hand, to be filed whenever the jury returns in case its verdict should be adverse.

There is a filing fee of $500 for federal appeals cases. States may vary in their filing fees.

Post-judgment motions “toll” the time to file the notice of appeal. The word “toll” in this context means that the appeal is put on hold until the issue is resolved. The following motions toll the timing of the appeals process until they are resolved:

  • a motion for judgment;
  • a motion to amend or make additional factual findings;
  • a motion for attorney's fees;
  • a motion to alter or amend the judgment;
  • a motion for a new trial; or
  • a motion for relief under any of the Rule 60 grounds.[22]

Many of these motions must be filed within 28 days of the entry of that final order or judgment, and then they will extend the time in which to appeal until 30 days from the date on which the district court rules on the last such remaining motion. Some of these motions also have alternative time requirements (such as 14 days for a motion for attorneys’ fees).

Any party who loses all or part of a case on the trial level may appeal that case. The party filing the appeal is called the “appellant” and the party defending the appeal is called the “appellee.” There may be times when both parties appeal a decision, in which case each party may be both appellant and appellee. This may happen, for instance, when a party wins a case but is dissatisfied with the amount of damages awarded[23].

Any nongovernmental corporate party to an appeal must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or state that there is no such corporation.[24]

The trial court may require that appellant to post an appeal bond or other security to cover the costs of the appeal.[25]. This will always be required if the appellant is moving for a stay of the judgment pending appeal[26] or to keep an injunction in place or change it.[27]

Grounds for Appeal

Appeals can be filed based on one of two grounds: an error during the trial, or that the judgment was clearly erroneous or against the weight of the evidence.

Errors during the trial can mean that the judge made an error -- usually by allowing prejudicial evidence in or by making an improper decision on a motion-- or that the jury was prejudiced in some other way. 

These errors during the trial must be serious enough that the case should be reversed because of them for the appeal to be successful. These are called “reversable errors.” Otherwise, they are “harmless errors” that would not be grounds for overturning the case. If the appeal is frivolous, the appellate court can impose penalties on the appellant[28].

To file an appeal, the grounds of that appeal need to have been stated during the trial in the form of an objection or in post-judgment motions that were denied. This is called “preserving the record at trial,” and is a major part of evidence law and procedure. Appeals courts will not hear an appeal based on new evidence or an objection that was not stated during the trial.

Transmitting the Record to the Appeals Court

The first part of the appeals case is to put together the record of the case for the appeals court. The record consists of:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk. [29]

This can be fairly expensive to start with, because it requires the trial transcript to be transcribed. That transcription must be ordered up by the appellant within 14 days of the end of the trial.[30] The transcription only needs to be of that part of the trial which is being appealed.[31] If the appeal is based on a judgment inconsistent with the evidence, that evidence must also be transmitted.[32] Likewise, only the relevant parts of the docket need to be forwarded.[33]

After the requisite parts of the record are completed, they are forwarded to the court of appeals.[34] This forwarding rule lays out which parties are responsible for preserving and transmitting the record, but, for the most part, the appellant is responsible for making sure that this transmittal is accomplished.

The record is then docketed and given a file number[35]. The party filing first is designated the appellant.[36] If more than one party files simultaneously, the plaintiff in the lower court will be the appellant.

In the event that a post-judgment motion pending at the trial court, if granted, would affect the appeal, the district court will be given a chance to rule on the motion even if the appeal is pending.[37]


Appellate Briefs and Oral Arguments

Certain motions can be made with the appellate court, like applications for relief from judgment while the appeal is pending.[38] But for the most part, appellate work consists of writing appellate briefs and arguing them in front of the court. These briefs are controlled by formatting rules.[39]

The appellant’s brief must be filed and served within 40 days of filing the record.[40] Appellate briefs from the appellant generally have a 30 page limit.[41] There are other limitations for follow-up briefs of other parties, and the page limitations may vary between state and federal court or between federal courts.

Within that limit, the appellant’s brief must contain the following:

1) a corporate disclosure statement, if required;

(2) a table of contents, with page references;

(3) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the brief where they are cited;

(4) a jurisdictional statement, including:

(A) the basis for the district court's jurisdiction, with citations to applicable statutory provisions and relevant facts establishing jurisdiction;

(B) the basis for the court of appeals’ jurisdiction;

(C) the filing dates establishing the timeliness of the appeal or petition for review; and

(D) an assertion that the appeal is from a final order or judgment that disposes of all parties’ claims, or information establishing the court of appeals’ jurisdiction on some other basis;

(5) a statement of the issues presented for review;

(6) a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record;

(7) a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings;

(8) the argument, which must contain:

(A) appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; and

(B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues);

(9) a short conclusion stating the precise relief sought; and

(10) the certificate of compliance, if required by Rule 32(g)(1). [42]

The appellee's brief must be filed within 30 days after the appellant’s brief is served.[43] It must conform to the requirements of the other rules, except that it need not make a jurisdictional statement or some of the other preliminaries required of the appellant’s brief.[44]  

The appellant may file a brief in reply to the appellee's brief[45]. This brief has a 15-page limit. And the court may allow the appellee to file a short reply to this brief.

Cross-appeals are also allowed, in which each party appeals against the other. In that case, each follows the briefing rules of both an appellant and appellee.[46]

The government is allowed to file amicus curiae (“friend of the court”) briefs at any time. These are briefs which argue for one party or the other. Non-governmental parties can also file these, but only with permission of the court.[47]

Appeals judges may order conferences to try to settle the case.[48] If not settled, the case can be decided based on the briefs. Alternatively, if the court or a party wants, the court can also hold oral arguments.[49] The panel may refuse to hear oral arguments if they are deemed unnecessary.

If the court decides to hear oral arguments, they take place in the courtroom, with the appellant starting. Any party not showing up to the argument will have its case taken on its brief.[50] During oral argument, the judges may ask questions of the attorneys, but the parties themselves do not participate in the arguments.

Appellate Court Decision

After the briefs and oral arguments, the judges usually conference to talk about the case. They then make their decisions. One judge is assigned to write the judgment and the majority Opinion, if there is one. Not all appellate decisions are accompanied by an Opinion. The appellate court’s judgment is final when it is entered on the docket.[51] That decision may itself be appealed to the state or federal Supreme Court, as applicable.


Execution on Judgment

Once the judgment is final and there are no more appeals or post-judgment motions, the judgment goes to its final stage of execution of judgment. An execution of judgment is the act of getting an officer of the court to take possession of the property of a losing party in a lawsuit (if the losing party refuses to voluntarily pay the judgment), at this point called the judgment debtor, on behalf of the winner, who is now called the judgment creditor. Liquid assets like bank accounts can be seized, and non-liquid assets can be sold to pay the judgment.

In the case of restraining orders or other behavioral orders, the final order goes into effect.

A money judgment can be enforced by a writ of execution.[52]  The writ is served by the U.S. Marshal or other person, presumably a law enforcement officer appointed by the court.[53] The enforcing party may use forms of discovery to obtain the information necessary to execute on the judgment.[54] There are also a number of statutes that determine how to execute judgments against government employees, banks, and other specific entities and those statutes take precedence over the rules.[55] The ways in which judgments can be collected are the focus of other courses, such as those covering creditors, debtors and bankruptcy.

Thank you for participating in this LawShelf course on Civil Litigation. We hope that you will use the foundation from this course to proceed to other, more advanced courses that cover more specific aspects of the civil litigation process.

 

 

 



[1] Please refer to the court structures delineated in Module 1.

[2] Older law and state law may refer to this motion as a motion for a directed verdict or as a motion for a judgment notwithstanding the verdict.

[7] Fed.R. Civ. P. 59(a)(2).

[11] Fed.R. Civ. P. 60(c)(2).

[13] Fed.R. Civ. P. 54(d)(2).

[14] Fed.R. Civ. P. 54(d)(2)(C).

[18] 2015 US government statistics.

[19] See attached official form.

[20] Fed.R. App. P. 4(a)(1)(A).

[21] Fed.R. App. P. 4(a)(5).

[22] Fed.R. App. P. 4(a)(4)(A)(i)-(vi).

[23] We will cover this occurrence later in this module.

[24] Fed.R. App. P. 26.1(a).

[26] Fed.R. App. P. 8(a)(1)(B).

[27] Fed.R. App. P. 8(a)(1)(C).

[30] Fed.R. App. P. 10(b)(1)(A).

[31] Fed.R. App. P. 10(b)(3).

[32] Fed.R. App. P. 10(b)(2).

[33] Fed.R. App. P. 11(e)(1).

[36] Fed.R. App. P. 28.1(b).

[41] Fed.R. App. P. 28.1(e)(1). Listed page limits are for federal court. State courts may have different limits.

[47] Fed.R. App. P. 29. These were discussed in Module 1.

[50] As we noted in Module 1, most appeals are heard by a three-judge panel. Some may be re-heard by the entire court en banc under Fed. R. App. P. 35 or may be reheard under Fed. R. App. P. 40.

[51] Fed.R. App. P. 36. This will include costs under FRAP 39 and judgment interest under FRAP 37.

[53] Pursuant to Fed. R. Civ. P.  4.1(a).

[54] Fed.R. Civ. P. 69(a)(2).