1. Transitioning from Trial to Appeal and Post-Trial Motions
D. Todd Smith September 30, 2012

2. 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
9/30/2012 Copyright © 2012 Smith Law Group, P.C.
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3. 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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4. 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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5. 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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6. 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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7. 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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8. 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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9. Notice of Appeal—Contents and Filing
• 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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10. Notice of Appeal—Contents and Filing
• 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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11. 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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12. 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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13. 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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14. 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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15. 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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16. 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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17. 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)
9/30/2012 Copyright © 2012 Smith Law Group, P.C.
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18. 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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19. 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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20. 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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21. Effect of Failure to Timely Assert JMOL
• 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
9/30/2012 Copyright © 2012 Smith Law Group, P.C.
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22. Effect of Failure to Timely Assert JMOL
• 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
9/30/2012 Copyright © 2012 Smith Law Group, P.C.
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23. 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
9/30/2012 Copyright © 2012 Smith Law Group, P.C.
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24. Motions for New Trial
• 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”
9/30/2012 Copyright © 2012 Smith Law Group, P.C.
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25. Motions for New Trial
• 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
9/30/2012 Copyright © 2012 Smith Law Group, P.C.
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26. Transitioning from Trial to Appeal and Post-Trial Motions
D. Todd Smith September 30, 2012