Civil Litigation-Court Rules

Posted on June 28, 2010 by Brien Roche

Most courts have adopted rules of procedure and rules of evidence. Those rules of procedure may be contained, to some extent, in the state code (in which case the procedural rules in essence become statutory law), or they may be in a formal set of rules referred to as the rules of procedure. In the federal court system, there is a set of rules referred to as the Federal Rules of Civil Procedure. Many state courts have adopted similar sets of rules of civil procedure.

In addition, there may be a set of rules referred to as the rules of evidence. In the federal court system, there is a formal set of rules referred to as the Federal Rules of Evidence that have been written by the Judicial Conference. Those Federal Rules of Evidence apply in federal court. At the state court level, many states have adopted their own state rules of evidence. Those rules are designed to govern the admissibility of evidence in that state court system.
 

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Civil Litigation-Appeal

Posted on June 17, 2010 by Brien Roche

If either party feels as though he or she has not been dealt with fairly by the trial court, either has a right to appeal that decision to the next highest court within that state’s court system. Although each party has a right to appeal, the court may be a court of discretionary appeal, and may decide not to hear the case.

An appeal is a very laborious process. In order to properly present an appeal, the transcript of the trial proceeding may have to be prepared. That transcript is prepared by a court reporter. The court reporter expects to be paid for the preparation of a transcript. The preparation of a transcript frequently costs several thousands of dollars. In addition, the party bringing the appeal has to present a legal argument (in the form of a brief or memorandum) to the appellate court stating why the trial court’s decision is in error.

The parties are not allowed to present new evidence on appeal. Instead, they are bound by the record created at the trial court level. Anything that was not properly presented or properly objected to at the trial court level is not going to be considered on appeal. An appeal is not an opportunity to re-try the case. It is simply an opportunity to request a higher court to review and correct an error made by the trial court. If a reversible error is found, the case is sent back to the trial court for a new trial or, in some instances, the appellate court reverses the trial court’s decision and enters a new judgment.
 

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Civil Litigation-Post-trial Motions

Posted on June 10, 2010 by Brien Roche

Once a jury verdict is entered, either party has a right to make post-trial motions. Those posttrial motions will typically come in the form of a motion for a new trial, a motion to decrease the size of a jury verdict, or, in some instances a motion to increase the size of the jury verdict.

Judges are reluctant to disturb a jury verdict. The traditional thinking has been that once a jury has spoken, that statement is final. If, however, the jury obviously disregarded the instructions of the court or returned a verdict that is clearly excessive or inadequate, the court has the authority to set aside that verdict (and, in some states, to actually alter that verdict).

Motions for a new trial must be based on some procedural error committed by the trial judge. For instance, if the trial judge were to admit evidence that should not have been admitted, allowed an attorney to say something to the jury that is inappropriate, or improperly instructed the jury on an issue of law, then any of those may be a basis for a motion for new trial.
 

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