Attorney Steve discusses how to file a motion like a PRO
How to File a Motion for a New Trial
In both civil and criminal trials, if you disagree with the outcome of your case you have several options available to contest the trial court's ruling. One of these options is to file a motion for a new trial. You are entitled to a new trial only for specific reasons defined by the state or federal rules of civil procedure that governed your case. Typically, a new trial will be granted if you can prove that some error prevented you from receiving a fair trial. New trials also may be granted if there is newly discovered evidence in the case. Keep in mind that the prosecution cannot request a new trial in a criminal case, as this would violate the defendant's Constitutional rights.
Drafting Your Motion
Analyze your case.You must check your state's laws and rules to understand the reasons for which courts will grant a new trial.
- Federal rules only limit the grounds to those accepted under common law, which means you'll have to do additional research to find out what grounds federal judges in your area tend to accept. State rules often list specific grounds for which a motion for a new trial may be granted.
- To properly review what happened at trial and reference it in your motion, you may need to request a trial transcript. You will be charged a fee for the transcript. While the fees charged vary among states, they typically are between and per page, so the price for the total transcript would depend on how long your trial lasted.
- Because the legal research involved in filing a motion for a new trial can be fairly intense, and you only have a limited time to file, you may want to consider consulting an attorney. In most jurisdictions you can find an attorney who is willing to work with you in a limited way, such as to research and prepare your motion, without representing you completely.
File your notice.In some jurisdictions, you must first file a notice declaring your intent to file a motion for a new trial.
- For example, California requires that you first file a notice of intent of move for a new trial within 15 days of notice of entry of judgment in the case.
- After you file your notice, you have up to 10 days to file your motion and serve the other parties to the case with your motion and any accompanying briefs or affidavits.
Search for forms.Many states have a court-approved form you can use to format your motion for a new trial.
- Forms may be available on the court's website, or through your local legal services office. You also can ask at the clerk's office if a form is available.
- If you cannot find a fill-in-the-blank form, you may want to ask the clerk for other new trial motions that were filed in the same court. You can use those motions as guides to craft your own, although you should be careful about copying the language in them verbatim. Your reasons for requesting a new trial may be different from someone else's.
Create your caption.The caption of your motion should be identical to all other documents filed in the case.
- If you want to request a hearing on your motion, you typically must include a statement such as "oral argument requested" or "hearing requested" in your caption, below the case number. Some jurisdictions automatically set a hearing for a new trial motion, in which case a notice of hearing typically will be included in the packet of forms to request a new trial.If forms were not available, you should check with the clerk to find out if you have to request a hearing.
- Keep in mind that the parties don't change when you file a motion for a new trial. If you were a defendant in the original trial, you will still be listed in the motion's caption as the defendant.
Write your introduction.Open your motion by stating who you are, whether you are the plaintiff or defendant, and that you are filing your motion to request a new trial.
- Your introduction generally will identify you as the movant or petitioner, and state that you move the court to set aside the judgment rendered against you and grant you a new trial.
- You also should provide the deadline for filing your motion or state that you are filing the motion within the time limits established by the applicable rules of civil procedure.
List your reasons for requesting a new trial.You should include every possible reason that might apply to your case, regardless of whether they seem to contradict each other.
- The judge will view each of your reasons independently and judge it on its merits. Don't think that if you argue one reason you aren't allowed to argue another.
- Typically you must list your reasons with specificity, clearly outlining the error or issue you allege took place that rendered the trial unfair. Simply saying that the judgment was "contrary to the law" or "contrary to the facts" generally won't be specific enough for a new trial to be granted.
- Make sure you understand the reasons underlying the grounds for granting a new trial. For example, if you are filing a motion for a new trial based on the discovery of new evidence, that new evidence must have been discovered after the trial was over but before the deadline passed for filing your motion – in other words, within a month after your trial was over. It also must be evidence that could not have been discovered before the end of the trial.
Create your signature block.You will need some space and a blank line to sign your motion after you've finished typing it.
- Under the blank line, type your name and basic contact information including your mailing address and phone number. You also may want to include your email address if you want the court and the other party to be able to get in touch with you that way.
- If you are required to sign your motion in the presence of a notary, you also must include a notary block.You typically can find the formatting for this block on the state court's website, or copy it from any other document you had notarized.
Get affidavits if necessary.If any of the reasons you've listed include reference to facts outside the trial itself, you must get affidavits from witnesses attesting to those facts.
- For example, one of the grounds for which a trial court may order a new trial is improper conduct by counsel or jury misconduct.If you allege such grounds as reason you should be granted a new trial, you must include affidavits or other evidence showing that the misconduct you allege actually occurred.
- If your reasons for requesting a new trial involve a legal error or a new development in the law, you will need to submit a detailed memorandum of law to accompany the motion itself.In such a situation, hiring an attorney to draft your motion and memorandum may be necessary to ensure you've included enough information for the judge to grant your motion.
Filing Your Motion
Sign your motion.Some jurisdictions may require you to sign your motion in front of a notary public.
- If you were required to have other documents you filed in the case notarized or "verified," you typically also must have your motion for a new trial verified.
- You also may be required to include affidavits, either your own or from witnesses to any facts you alleged in your motion. Affidavits contain sworn testimony and also typically must be notarized.
- After your motion and any other documents have been signed and notarized as necessary, make at least two copies – one for your own record and one to be served on the other party to the case. The clerk will keep the originals when you file them.
Take your motion to the clerk's office.You must file your motion before the deadline provided for post-trial motions.
- You will have to pay a filing fee to file your motion, unless the court has already granted you a waiver. The fee to file a post-judgment motion such as a motion for a new trial is typically under 0.
- Under federal rules, you have 28 days after the judgment was entered to file a motion for a new trial.Many states provide similar deadlines.
Have the other parties in your case served.The other parties in your case must have sufficient legal notice that you've requested a new trial, even if you filed a notice of intent.
- If you were able to find a form to use, it typically will include a certificate of service. Make sure you serve the other parties on the same day and using the method you described in the certificate of service.
- Most jurisdictions will allow you to serve your motion using certified mail with returned receipt requested.This generally is the simplest and most cost-effective way to serve the other parties.
Get a hearing set.Unless a hearing was scheduled by the clerk automatically when you filed your motion, you will have to contact the clerk's office after the other side is served.
- Take notes on what you plan to say to the judge and outline your argument for why the judge should grant your motion for a new trial. If you have any documents or evidence you plan to introduce, make enough copies for all parties and the judge.
- You may consider practicing your argument in front of friends or family members to get their opinions and tips on the soundness of your reasons as well as your performance.
Wait for a response.The other side may file a response opposing your motion for a new trial.
- The deadline for filing a response varies greatly among jurisdictions. The deadline typically is measured by the length of time before the hearing is set, so you have enough time to review the response before you go to the hearing.
- Keep in mind, though, that this may not be a lot of time – opposition documents may be due as little as four days before the date of the hearing.
Arguing Your Motion
Appear on your hearing date.Make sure you arrive at the courthouse at least a half hour early so you have time to get through security and find the courtroom where your motion is being heard.
- As with the original trial, dress in neat, conservative clothing and be respectful of the judge and all other court staff.
- Keep in mind that the judge could dismiss your motion if you are not on time. Make sure you are in the courtroom before the time on your notice of hearing. If there are several hearings being held that day, sit in the gallery and wait for your name to be called.
- Make sure you have all your documents with you, as well as an outline of what you want to say to the judge. Have at least two copies of anything you want to enter into evidence, so the judge and other side can view the document as well.
Explain your reasons to the judge.Since you made the initial request, typically you will have the opportunity to talk to the judge first.
- Stick to the facts, and avoid making vague statements that don't have any factual or legal meaning behind them. For example, you won't get very far saying something like "your honor, this ruling is fundamentally unfair." Obviously you believe that or you wouldn't be asking for a new trial – but you need to be able to explain to the court clearly and succinctly why the trial ruling is unfair.
- Keep in mind that even if you are representing yourself, you still will be expected to know and follow the rules of civil procedure and evidence just like an attorney would. You may want to review those rules before you get in front of the judge.
Listen to counter-arguments from the other side.The other side may be present at the hearing to present an argument as to why the judge should not grant your motion for a new trial.
- Don't interrupt the other side, even if you hear something you disagree with – and you probably will. Make notes about anything to which you want to respond, and the judge may give you an opportunity to respond after the other side has finished its argument in opposition.
Receive the judge's decision.After hearing all arguments, the judge will enter his or her ruling on whether you will be granted a new trial.
- Keep in mind that the judge also may order a partial new trial in which only a particular issue is decided.
- For example, if you argued that you were entitled to a new trial because the jury awarded inadequate damages, the judge may award a new trial only on the issue of damages. In that situation, you wouldn't have to re-litigate everything else involved in your case, only the issue of the amount of damages to which you were entitled.
- If the judge denies your motion for a new trial, you may still have other options available to challenge the trial court's judgment, such as filing an appeal. You may be able to assert similar arguments on appeal that you asserted in your motion for a new trial.
Video: How to File a Motion in Family Court
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