2012 federal court transitioning slidedeck

Transitioning from Trial to Appeal and Post-Trial MotionsD. Todd Smith April 13, 2023

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Appealable Orders—Final Judgments

• Finality: a ruling that ends litigation on the merits by resolving all claims of all parties

• But a judgment can be final even if it does not dispose of:– Attorney fee claim under shifting statute or contract

(but not independent claim for fees as damages)– Abandoned claims– Defendant never served with process

• Arbitration: order compelling arbitration but not dismissing claims or administratively closing case is not final

Copyright © 2012 Smith Law Group, P.C.

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Final Judgments—Appellate Deadlines

• Separate document requirement: appellate timetable begins when a final judgment is entered on the docket on a separate document– Separate document should not contain reasoning

supporting the judgment– Should announce winner and relief awarded, and

that’s all– Should not reference any other documents


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Separate Document Requirement

• Clerk is supposed to promptly enter a separate document

• If the clerk doesn’t, you can file a motion• If they still don’t, are you in limbo? No

– Ruling requiring but lacking a separate document is subject to appeal 150 days after entry

– Can waive the separate document requirement by filing a notice of appeal

• If your notice of appeal is late, see if separate document requirement has been satisfied


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Interlocutory Orders

• Less-than-final judgments: don’t dispose of all parties and all claims

• Can be appealed if:– 54(b) certification: district court enters judgment as to

one or more claims or parties and expressly determines there is no just reason to delay

– Collateral orders– Discretionary interlocutory appeals– Injunctions/receiverships– Statutory interlocutory appeals


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Perfecting Appeal—Notice of Appeal

• Unless extended, within 30 days of entry

• United States as a party: 60 days

• Premature filing: treated as filed on entry of judgment

• Time limit is jurisdictional

• Cross appeal: within 14 days


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Notice of Appeal: Extending Deadlines

• Deadline is automatically extended if any of the following motions are timely filed:– JMOL– MNT– Alter/amend– Additional fact findings– Relief from judgment

• Deadline starts from the date of the last order disposing of one of these motions.

• No separate document requirement for ruling on one of these motions, so don’t wait


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Notice of Appeal—Contents and Filing

• File with the district court clerk• Pay fee at the same time: $455; payable to

district court clerk• Include names of appealing parties• Don’t name appellees

– Not required– If you name some, but not all, you may be limited later– Court will consider: (1) orders named in the notice of

appeal; (2) appellant’s brief; (3) whether unnamed appellees suffered prejudice as a result of the error


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• Judgments/orders being appealed– Appeal from final judgment sufficiently preserves all

prior orders intertwined with final judgment

– Some orders after final judgment will be seen as “merging with final judgment,” but safest practice is to assume they won’t. Amend your notice instead

– i.e. Attorney fees: have to appeal judgment despite pending request for attorney fees. Don’t rely on your earlier notice of appeal to perfect an appeal from the subsequent ruling on fees. File an amended notice


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• Name the court to which appeal is being taken• Courts have excused this requirement when

– intention to appeal to a certain court can be inferred from the notice, and

– appellee has not been materially misled

• Seems silly, but it happens– Bankruptcy direct appeals from adversary

proceedings: bypassing the district court– Notice of appeal should say you want to appeal to the

district court, not the 5th Circuit


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Substitutes for Defective Notice of Appeal

• If notice was defective or untimely, look for a substitute (some other document that was timely filed and included required elements)– Merits brief filed within time limit– Motion for extension of time to file notice of appeal– Motion to stay permanent injunction pending appeal– Certificate of probable cause

• But not payment of filing fee alone


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Record on Appeal

• Appellant must order the record and arrange payment within 14 days of (a) filing the notice of appeal; or (b) entry of an order that extended the notice of appeal deadline, whichever is later

• 2009 rule changes: many deadlines were extended from 10 to 14 days. But weekends and holidays are now included in those deadlines

• Can actually wind up with less time than before


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No Transcript/Partial Transcript

• If you are not filing a transcript, you have to file a certificate saying as much

• If a partial transcript is ordered, you must file and serve a statement of issues you intend to argue – Have to file/serve this within the time for requesting

the record. – Appellee can then designate additional parts of the

record within 14 days– Then Appellant has 14 days to order the additional

parts designated by appellee


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Post-judgment Motions Generally

• Generally, court will not consider issues not raised below. – 5th Circuit will consider issue raised for first time on

appeal if it is a purely legal issue and if consideration is necessary to avoid a miscarriage of justice, or if there are “special interests at stake” and no prejudice

– Very limited circumstances, so don’t rely on these exceptions

– Know your rules or hire someone who does: some errors preserved before judgment will become unpreserved if not raised in a post-judgment motion, and vice versa


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Extending the Notice of Appeal Deadline

• Timely filed post judgment motion extends deadline. Deadline-extending motions must be filed within 28 days after the entry of judgment– Includes weekends and holidays– Deadline cannot be extended by the court and has

been called jurisdictional (5th Cir), although this is no longer clear after Bowles

– Look at the circuit’s precedent, because they are split on this, and some cases are inconsistent• Untimely post-judgment motion may toll filing deadline, but

only if opponent fails to object (8th, 6th, D.C.)• While deadline is not jurisdictional, failure to object did not

allow tolling (3rd)


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Renewed JMOL

• No legally sufficient evidentiary basis for the jury to find for the opposing party on an issue material to a party’s cause of action or defense

• There were no controverted issues of fact on which reasonable persons could differ, and the undisputed facts entitle the movant to judgment as a matter of law

• Some other legal principle bars a party from prevailing on its claim or defense


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Pre-submission Motion for JMOL

• As early as when a party has been fully heard on the merits

• But must be made at least at or before the close of the evidence

• If made before the close of the evidence, you don’t have to renew it at the close of the evidence (2006 rule change)


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Renew the JMOL After Judgment

• File your motion 28 days after judgment• Premature motion: Court may presume that

judgment overruled the motion; notice of appeal is due 30 days after judgment– 7th: Implied overruling; deadline to appeal runs from

the date of the judgment– 5th & 9th Circuit: review the record to see if court

intended judgment to overrule the motion– Anywhere: after judgment, appellate timetable does

not begin to run until an order is entered on the JMOL


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No Extensions of Time!

• Rule 6(b): extensions prohibited• 5th Circuit: deadline is jurisdictional• Circuit split after Bowles v. Russell (U.S. 2009)• If your opponent files an untimely motion, you

should object in the trial court to preserve an argument that the issues raised in the motion are either waived or that an appeal is untimely


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Effect of Failure to Timely Assert JMOL

• If you have timely raised a motion for JMOL and timely renewed the motion, the standard of review is the most favorable– De novo review – Same legal standard as district court– Judgment as a matter of law is appropriate after a

party has been fully heard on an issue during a jury trial if the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue


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• Assume no pre-verdict motion, but you filed a motion for JMOL after the judgment– Plain error standard of review– Pre-verdict motion required before a post-judgment

JMOL– Court does not review for substantial evidence, as in a

legal sufficiency review, but looks for any evidence– If your opposing party moved for JMOL after judgment

but not pre-verdict, then you have to object. Otherwise, you risk waiving your waiver argument

– Most important: cannot obtain rendition on appeal. At most you can get a new trial if you requested one


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• Assume you filed a pre-verdict motion for JMOL but failed to renew the motion after judgment

• SCOTUS has suggested you get NOTHING, not even plain error review– Unitherm Food Sys. v. Swift-Eckrich– 8th and 9th Circuits: waiver/no review for plain error

• 5th Circuit: Panel split– Some cases continue to apply plain error doctrine,

citing but not discussing Unitherm– Some cases follow Unitherm and refuse to review

verdict for plain error


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Motions for New Trial

• 28 days after judgment entered, including intervening weekends/holidays– Early filing could risk implied ruling upon entry of

judgment, starting appellate timetable

• Deadline cannot be extended– Unclear if deadline is jurisdictional, so object to

untimely motion

• Grounds must be stated with particularity/attach affidavits if necessary– Affidavits in response to motion due 14 days after

motion for new trial filed


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• Issues:– Inconsistent jury findings– Verdict against the great weight of the evidence– Inadequate/excessive damages– Incurable jury argument– Jury misconduct– Jury coercion– Newly discovered evidence– To “prevent injustice”


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• Not a prerequisite to appeal if objection made and ruled on at trial

• If error could not have been challenged at trial, then raise it in a MNT to preserve the error (i.e. excessive damages, newly discovered evidence, jury misconduct

• Can be filed “in the alternative” to a JMOL– If trial court grants JMOL, make sure it also rules on

MNT. Some courts of appeal will remand for court to make the ruling, but the 5th Circuit has found a waiver of a right to remand where (1) failed to seek a ruling in TC and (2) didn’t raise issue in appellate brief


Transitioning from Trial to Appeal and Post-Trial MotionsD. Todd Smith April 13, 2023

2012 federal court transitioning slidedeck

Documents

notice of appeal motion

defective notice of

yourearlier notice of

smith law group

appealed appeal

appeal appellant

notice of appealcontents

notice ofappeal