Grounds After a Jury Trial

Rule 59(a)(1)(A) does not list the grounds for a new trial after a jury trial. It points backward instead: the court may order one “for any reason for which a new trial has heretofore been granted in an action at law in federal court.”¹ Heretofore means previously, so the rule adopts every reason federal courts had already recognized in jury cases and hands the judge no catalogue to consult. A student who reads only the rule learns that grounds exist without learning what they are, because the content lives in the decided cases.²

This design fits the problem. A fixed list would have to anticipate every way a verdict can become unreliable, from a misleading instruction to an improper remark in front of the jury to misconduct in the jury room, and no drafter can do that in advance. Borrowing the courts’ accumulated experience leaves the trial judge room to correct whatever unfairness infected this verdict, and the judge, who watched the trial, is better placed than an appellate court to see how much harm an event in the courtroom caused.³ The cost of that flexibility is abstraction. The decisions say that a verdict must be clearly erroneous, a miscarriage of justice, or a mistake that leaves the judge with a firm conviction of error, and those phrases mean little until you see the problems they describe.⁴

The decided cases sort into three families. The first covers verdicts against the weight of the evidence, in which the judge weighs the proof, something the standard for judgment as a matter of law forbids; it includes awards the judge finds too large or too small.⁵ The second covers errors in the trial process, such as mistaken rulings on evidence, flawed instructions, and juror misconduct, which can warrant a new trial even when the evidence supports the verdict.⁶ The third covers evidence that surfaces only after the trial ends. The Chapman hypothetical from the preceding section already illustrated the first family: the trial judge thought the $1.6 million verdict excessive in light of Chapman’s evidence that her leg throbbed.⁷ Because excessive and inadequate awards carry remedies of their own, remittitur and additur get a separate subsection below.

Verdict Against the Weight of Evidence

Of the usual grounds, the verdict against the weight of the evidence draws the most debate, because it asks the judge to weigh the proof, which a motion for judgment as a matter of law forbids. Rule 59(a)(1)(A) allows it as one of the reasons for which federal courts had previously granted new trials in actions at law.⁸ In Gasperini v. Center for Humanities, Inc., the Supreme Court explained that the Seventh Amendment’s Reexamination Clause, which limits how courts may re-examine facts a jury has tried, does not inhibit the trial judge’s authority to grant new trials for those historic reasons. The Court called that authority large and reaffirmed that a federal trial judge may order a new trial when the verdict appears to the judge to be against the weight of the evidence.⁹

The power draws criticism because of what the judge actually does with it. At common law, a jury sat in the presence and under the superintendence of a judge who could advise it on the facts and set aside a verdict that went against the law or the evidence, so the power has long been counted as part of trial by jury.¹⁰ Still, when a judge sets a verdict aside because the judge is dissatisfied with it, the judge has to some extent put a personal view of the facts and of the witnesses’ credibility in place of the jury’s, and critics see that as a denigration of the jury system.¹¹ Two pulls therefore operate at once. The judge does not sit to approve miscarriages of justice, yet a decent respect for the collective wisdom of the jury suggests that the judge should usually accept its findings despite personal doubts.¹² The verbal formulas for the standard are attempts to strike that balance.

Courts state the standard in several ways, and the variations are close in substance. A judge may grant the motion when the verdict is against the clear, overwhelming, or great weight of the evidence, or when it is seriously erroneous.¹³ Federal courts also ask whether the verdict rests on false evidence or amounts to a miscarriage of justice.¹⁴ Another formulation asks whether, after giving the jury’s findings full respect, the judge is left on the entire evidence with a definite and firm conviction that a mistake has been made.¹⁵ Read these phrases as one standard stated several ways: the verdict must be clearly wrong, and the judge’s disagreement with it is only the starting point.

What distinguishes this ground is the judge’s freedom to do what a motion for judgment as a matter of law forbids. On a new trial motion, the judge may weigh the evidence and assess credibility, and need not assume that the jury resolved credibility questions in the winner’s favor or resolve doubts against the movant.¹⁶ The judge thus acts to some extent as a “thirteenth juror.” The question is not whether the verdict was totally irrational but whether it is so strongly suspect that justice calls for another jury to hear the case.¹⁷ A verdict can therefore survive a motion for judgment as a matter of law, because reasonable jurors could have found as this jury did, and still fall to a new trial motion, because the weight of the evidence runs the other way.¹⁸ The $1.6 million award in the Chapman hypothetical sits in that gap: the judge thought it excessive in light of the evidence that her leg throbbed, and in such circumstances a court may grant a new trial on the ground that the verdict is against the weight of the evidence.¹⁹

The freedom to weigh has two limits. The first is that the judge may not displace a verdict merely because the judge disagrees with it. Substantial evidence pointing the other way is not enough, and neither is the judge’s belief that the judge would have voted differently as a juror.²⁰ If verdicts survived only when the judge agreed with them, the jury would decide nothing. The trial judge, who saw the whole proceeding, is also better placed than an appellate court to tell when a verdict has gone wrong, which is why this power rests with the trial court.²¹ The same restraint explains why repeated grants are disfavored. A judge could in theory keep setting aside verdicts for the same party until a jury finally agreed with the judge, but when two juries reach substantially the same result, the chance of a miscarriage of justice is slight, and courts rarely grant a new trial after two verdicts on the facts for the same party.²²

The second limit is that the intensity of scrutiny should fit the kind of trial. When the outcome turned on which witnesses the jury believed, the judge should hesitate to disturb the verdict, because the dispute is the credibility call the jury exists to make, and the simpler and shorter the trial, the more reluctant the judge should be to second-guess the jury.²³ When the trial is long and complicated and involves subjects outside jurors’ ordinary knowledge, the judge may scrutinize the verdict more closely.²⁴

Trivedi v. Cooper applies the standard to a real verdict. Trivedi sued his employer and his supervisor, Cooper, for a hostile work environment, failure to promote, and retaliation. The jury returned a $700,000 verdict for Trivedi, and the defendant moved for judgment as a matter of law or, in the alternative, for a new trial.²⁵

The hostile environment claim shows how the two motions differ. The defendant could not even renew judgment as a matter of law on that claim, because he never moved for it before the case went to the jury, but a new trial motion carries no comparable requirement, so the court reached the merits.²⁶ On the merits, the proof was thin in places and sharply contested in the one place that mattered. Trivedi’s complaints about travel, computers, and library access had innocent explanations or no support, since travel was funded by grants the researchers obtained for themselves and the computers and library were open to everyone. The most potent evidence was Cooper’s use of racial slurs from 1986 onward, which Cooper denied.²⁷

The court did not simply deny the motion, and it did not order a new trial outright. It concluded that the size of the $700,000 award was against the weight of the evidence and shocked the judicial conscience, and it gave Trivedi a choice between accepting a reduced amount and facing a new trial.²⁸ That choice is remittitur, taken up next. Across the case, the same standard works differently depending on the evidence and the kind of dispute, which is what a weight-of-the-evidence analysis should do.

Remittitur and Additur

The Seventh Amendment’s Reexamination Clause permits a federal court to re-examine a fact tried by a jury only according to the rules of the common law, yet the Supreme Court has read the clause to leave the trial judge’s traditional new trial power intact.³⁰ In Gasperini, the Court explained that this power includes overturning a verdict as excessive, and that the judge may do so in two ways. One is a new trial ordered without qualification. The other is a new trial conditioned on the verdict winner’s refusal to accept a reduction, a device called remittitur.³¹ The same passage cites Dimick v. Schiedt, which upheld remittitur against Seventh Amendment attack but rejected additur, the mirror-image device that conditions a new trial on the verdict loser’s agreement to pay more.³² One tool is permitted in federal court and the other forbidden, yet both start from the same trigger: the judge’s conclusion that the amount of a verdict is against the weight of the evidence.

Remittitur is the remedy for an excessive verdict. When the judge concludes that the size of the award is against the weight of the evidence and shocks the judicial conscience, the judge may give the verdict winner a choice: remit the excess and accept the amount the court finds reasonable, or have the verdict set aside and the case tried again.³³ The device is practical because the defect lies in one number and not in the jury’s finding that the defendant owes compensation, and a full retrial to repair a number costs both sides and the court a second trial. Remittitur lets the plaintiff avoid that cost by taking a smaller sum, and it lets the defendant escape an award the evidence cannot support. It also respects the jury right, since the reduced figure falls within the amount the jury itself awarded: the judge subtracts from what the jury found and adds nothing the jury did not find.

Trivedi shows the device and its consequences. The court ordered a new trial conditioned on Trivedi’s refusal of the reduction it proposed.³⁴ Had Trivedi accepted the reduced amount, he would have waived the right to appeal the remittitur order, because a party who takes the court’s offer in place of a retrial cannot then attack the offer.³⁵ Had he refused, a new trial would follow, and because an order granting one continues the case instead of ending it, he could not appeal until final judgment after the second trial. On that later appeal, the court of appeals could decide whether the new trial should have been ordered at all, and it would then choose whether to order a new trial or direct entry of judgment.³⁶ A later section returns to appeal and the standard of review.

The exam version of this topic usually runs the other way, with a verdict that is too small. If a federal judge finds a damages award inadequate, may the judge offer the defendant a choice between paying more and facing a new trial?

The judge’s order is invalid in federal court, because Dimick held that additur violates the Seventh Amendment.³⁷ The Court’s stated reason is that the added amount forms no part of the jury’s original verdict, so a sum supplied by the judge is inconsistent with the right to jury trial.³⁸ What the judge may do is grant a new trial on damages with no condition attached, and the case then goes to a fresh jury, which alone can decide a higher figure.³⁹ A modest shortfall is treated the same way. A judge who thinks an $85,000 verdict in a federal diversity case is too low can order a new trial limited to damages but cannot make that order depend on the defendant’s agreement to an increase.⁴⁰

Put the two decisions side by side and the line is plain. In Trivedi the court asked the verdict winner to take less, which is permitted, while Dimick forbids the order that asks the verdict loser to pay more. Students often swap the labels, so ask which party is being asked to consent. Remittitur asks the plaintiff who won an excessive verdict to accept a smaller one. Additur would ask the defendant who lost an inadequate verdict to accept a larger one.

The reason for the asymmetry is historical. The Seventh Amendment preserved jury trial as it existed at common law, and remittitur was part of common law practice while additur was not, so the amendment carried the first device forward and gave the second no protection.⁴¹ History explains the line without defending it, and a leading treatise says that additur has been held to violate the Reexamination Clause and remittitur has not, with no good reason for the distinction.⁴² Most state courts allow both devices, but federal practice allows only remittitur.⁴³ Because the federal bar is constitutional, the only federal remedy for an inadequate verdict is a new trial.⁴⁴

Errors in the Trial Process

The second family of grounds covers mistakes in how the trial was run, and Rule 59(a)(1)(A) reaches them because it borrows every reason for which federal courts had already granted a new trial in an action at law.⁴⁶ A weight-of-the-evidence motion asks whether the verdict itself is clearly wrong. A process-error motion asks whether the machinery that produced the verdict can be trusted, so it can succeed even when the evidence amply supports the result. Every litigant is entitled to a fair procedure, and a mistake during trial can corrupt the jury’s reasoning by exposing it to improper information or by handing it the wrong rule of law.⁴⁷ The typical mistakes are the improper admission or exclusion of evidence, improper instructions from the judge, and juror contact with witnesses outside the courtroom.⁴⁸

The trial judge has a practical reason to act on these motions. A judge who refuses to cure a substantial error invites an appeal, a reversal, and a new trial anyway, after much added effort and expense.⁴⁹ Ordering the retrial at once removes that detour. The motion also differs from a renewed motion for judgment as a matter of law in what must come before it. No motion is required before the case goes to the jury, and Trivedi shows the difference: the defendant’s failure to move earlier cost him the renewed motion on the hostile environment claim but left his new trial motion on the same claim open to decision on the merits.⁵⁰ A party who spots an error during trial may ask for a mistrial on the spot, but the motion after the verdict does not depend on having done so.⁵¹

Rulings on evidence are the most familiar source of process error. A losing party may claim that the court admitted the testimony of an unqualified witness, or that the court wrongly ruled a witness unqualified and kept out testimony that would have made a difference.⁵² Instructions matter because they supply the legal rules the jury applies, so a misstatement of law spoils the verdict at its foundation. If the governing standard for a manslaughter conviction is gross carelessness and the judge tells the jury it may convict a defendant who acted negligently or carelessly, the jury may convict on proof the law treats as too thin.⁵³ A trial can also be unfair because of its surroundings, as when a personal injury case with high emotional content is tried in the county where the injury occurred and the defendant claims the community atmosphere denied him a fair trial. The judge then decides whether the psychological environment of the proceedings made the trial unfair.⁵⁴

Other process errors originate with the people in and around the courtroom. A new trial may be granted for improper conduct by a party, a witness, or a lawyer that creates a substantial risk of an unfair verdict, and also when the jury itself behaved improperly, as when a juror was bribed or was contacted by a party.⁵⁵ What these errors share is that the verdict may rest on something other than the evidence and the law the judge supplied, which is the very thing trial procedure exists to prevent.

A verdict can also be defective on its face when its parts contradict one another. In a case involving the defendant Martam, the jury’s general verdict found for Martam on one count and also awarded punitive damages on that count. The court of appeals held that a factually inconsistent general verdict cannot stand and that the district court should have ordered a new trial on that count, because nobody could tell which answer expressed the jury’s real finding.⁵⁶ Disregarding the damages answer would do as much violence to the jury’s findings as disregarding the liability answer, so neither can be chosen without guessing.⁵⁷ When a general verdict comes with written interrogatories under Rule 49(b), the court must first look for a view of the case that reconciles the answers with the verdict.⁵⁸ If the answers agree with each other but conflict with the verdict, the court may enter judgment on the answers, send the case back to the jury, or order a new trial, and if the answers also conflict with each other, only the last two choices remain.⁵⁹ The cheapest cure, sending the jury back for further deliberation, disappears once the jury is discharged, which is why a visible inconsistency is best raised before the verdict is accepted.⁶⁰

Identifying a process error is only the first step, because three limits shape every motion on these grounds: prejudice, preservation, and what jurors may say about their own deliberations.

The first limit is that the error must have mattered to the outcome. A new trial may not be granted for errors that fail to affect the substantial rights of the parties, which is the harmless-error rule of Rule 61, so unless the judge believes the error might have made the case come out differently, the motion fails.⁶¹ Another formulation asks whether the error probably, or to a substantial degree, affected the right to a fair trial or the jury verdict.⁶² The inquiry looks at errors singly and together, so several small mistakes can add up to prejudice that none would show alone.⁶³ The limit exists because no trial is flawless and a new one costs the parties and the court a great deal, so retrying a case over a slip that changed nothing would spend that cost and buy no improvement in the result.⁶⁴

Hypothetical Illustration

The judge in a collision case admits a police officer’s account of what a bystander said about the traffic signal, although the statement is hearsay, and the defense objects at once. Three eyewitnesses testified without contradiction to the same signal color, and the trial turned on the extent of the plaintiff’s injuries. The defense later moves for a new trial, and the motion should fail, because the statement added nothing the jury lacked. In a second collision case the same bystander statement is the only evidence of the signal color, the signal is the one hotly contested issue, and the defense again objected at once. A plaintiff’s verdict there may rest in part on the improper evidence, so the error may well have affected the verdict and a new trial is warranted.

The ruling is equally wrong in both trials, and what differs is whether the improper evidence reached a point the jury had to decide on the strength of that evidence. A judge therefore asks what the error touched, in addition to whether the ruling was wrong. The same logic applies to an instruction, which reaches every juror’s reasoning on the issue it governs, so a misstated standard on the central question is far more likely to have mattered than a stray evidentiary slip.

The second limit is that the movant must have raised the error at trial, and raised it specifically. For most kinds of error, the injured party must make a timely objection to preserve the right to rely on that error as a ground for a new trial.⁶⁵ A party who stays silent through the ruling usually cannot attack it afterward in a new trial motion, unless the error was so fundamental that gross injustice would result.⁶⁶ The mechanism is simple. An objection made when the error occurs lets the judge exclude the evidence or correct the instruction while the trial can still be saved, whereas an objection made after the verdict arrives too late to prevent anything. The objection must also be specific, because one that does not tell the judge what is wrong gives the judge nothing to correct. The rule removes a tactical temptation as well: a lawyer who could stay quiet about an arguably prejudicial ruling and produce the objection only after losing would hold a free second chance in reserve, and the rule forces the objection to the moment when it can do the court some good.⁶⁷

A filing inside the twenty-eight days that Rule 59(b) allows satisfies the deadline for the motion, but it does not retroactively supply an objection that should have been made at trial.⁶⁸ Preservation also separates process errors from weight-of-the-evidence complaints. A claim that the verdict is against the weight of the evidence cannot even be framed before the jury has returned a verdict, so no earlier objection exists to demand.⁶⁹ A process error, by contrast, flows from rulings and events the party could have challenged as they occurred, which is why the law asks for that challenge at that moment.

The third limit applies when the claimed error is something that happened in the jury room. Claims of jury misconduct run into the rule of evidence that excludes juror testimony offered to impeach the verdict, Federal Rule of Evidence 606(b).⁷⁰ A juror’s testimony is inadmissible to show what was said or what occurred during deliberations, or what influenced a juror’s mental processes, with one exception: it is admissible to show that extraneous prejudicial information was improperly brought to the jury’s attention or that an outside influence was brought to bear on a juror.⁷¹ Put another way, the jury generally may not impeach its own verdict, and testimony that the jurors ignored the judge’s instructions describes the deliberations and remains inadmissible.⁷² The line follows the place where the problem began. A news report or a party’s approach to a juror corrupts the process from outside and can be proved without asking jurors to reconstruct their reasoning, while confusion, disagreement, and carelessness inside the jury room are the ordinary stuff of deliberation. If jurors could be summoned after every verdict to describe how they reached it, they would lose the candor that deliberation depends on, and no verdict would be final while a determined loser could produce a dissatisfied juror’s affidavit.

The averaging affidavits describe what the jurors did while deliberating and how they reached their figure, so the court should not consider them and the verdict stands. The second juror describes an outside influence, which the exception admits, and if the contact probably affected the verdict the prejudice limit is met as well, so a new trial may follow. Evidence from a third party, such as a court officer who saw the contact, is not restricted by the bar on juror testimony.⁷³

Exam Analysis Steps

Because the three limits sit on top of the ground itself, run a process-error motion in the order a court would apply them:

Identify the process error and its kind: a ruling on evidence, an instruction, improper conduct by counsel, a party, or a witness, jury misconduct, or an inconsistent verdict.
Ask whether the error, alone or together with others, probably or substantially affected the right to a fair trial or the verdict, remembering that an error touching only a cumulative or undisputed point is harmless.
Ask whether the movant raised the error timely and specifically at trial, remembering that no motion before the case goes to the jury is required but an objection to the ruling is, except for an error so fundamental that gross injustice would result.
If the error is jury misconduct, ask whether the proof comes from a third party or from juror testimony about extraneous prejudicial information or outside influence, and set aside juror testimony about the deliberations themselves.

Exam stems usually plant a flaw that fails one of these steps and leave the rest satisfied: a serious-sounding ruling that touched nothing the jury had to decide, a timely motion that rests on an objection never made, or a juror affidavit that describes the deliberations instead of an outside influence.

Newly Discovered Evidence

Rule 59(a)(1)(A) permits a new trial after a jury trial for any reason for which federal courts had previously granted one in an action at law, and one of the reasons those courts recognized is evidence that came to light only after the trial ended.⁷⁶ This third family of grounds complains about something different from the first two. A weight-of-the-evidence motion says the verdict is wrong on the record the jury had, and a process-error motion says the trial was run unfairly, but a motion based on newly discovered evidence says the record itself was incomplete, so the jury decided the case without proof that would have mattered. The trial may have been flawless on its own terms, and that is why this ground comes with demands the other two do not carry.

A party who has just lost has every reason to keep searching for something that would have changed the result. If any fact found after the verdict could reopen it, a litigant could try the case once with the proof in hand, continue the search, and try it again whenever the search paid off, so that no judgment would ever settle anything. The ground avoids that outcome by limiting relief to evidence the movant truly could not have presented. The person seeking a new trial on this ground must show four things.⁷⁷

The first two requirements work together to fix what the evidence must be. Evidence discovered after trial is evidence the movant lacked when the trial ended, because a party who already held a document or knew of a witness could have offered it to the jury and cannot claim the record was incomplete through no fault of its own. The diligence requirement then asks how the movant came to be without it. A movant who searched carefully before and during trial and still could not reach the evidence lost for want of proof that was beyond reach, and that is the only kind of loss this ground repairs. Students often treat anything first seen after the verdict as newly discovered, when the real question is whether a diligent search would have produced it sooner.

Every requirement is met on those facts: the log surfaced after trial, a thorough search had failed to reach it, it speaks directly to the decisive issue, and a verdict resting on the seller’s contradicted account would be unjust, so the motion has a real prospect of success. Had the log instead sat in the carrier’s file, and had the lawyer never asked the carrier for it, the buyer would fail the second requirement, because a routine request would have produced the log before the trial ended and the buyer’s first sight of it after the verdict would change nothing.

The last two requirements guard against the cost of a second trial, which falls on the parties and on the court.⁷⁸ A retrial should buy a better result, so the evidence must bear on a fact that decides the case and must be likely to change the outcome, not merely possible to cite in a new argument. Evidence that repeats what the first jury already heard, or adds a marginal detail to an otherwise complete record, cannot meet that standard, because a new jury would return the same verdict at double the price. The final requirement, that injustice would otherwise result, keeps the ground tied to correcting a wrong result and away from improving a litigant’s presentation.

The narrowness of the ground grows out of the diligence requirement combined with the filing deadline. Rule 59(b) requires a motion for a new trial to be filed no later than 28 days after entry of judgment.⁷⁹ The period runs from entry of judgment and not from the day the movant learns of the evidence, so a party who finds something on the thirtieth day has no Rule 59 motion left to file. Diligence already confines the ground to evidence a careful party could not have found by the end of trial, and the deadline then leaves that party only a few weeks after judgment to find the evidence, recognize its importance, and file. Very little evidence arrives inside both limits, which is why new trials for newly discovered evidence are exceedingly rare.⁸⁰

An exam stem that has the losing party learn of new proof, or of improper contact with a juror, months after judgment is testing the deadline more than the merits of the evidence.

The Rule 59(b) period expired about five months earlier, so a motion under Rule 59 is untimely however strong the new evidence may be. Ames still has a route, because Rule 60 allows a motion for relief from a judgment for a limited list of reasons, including newly discovered evidence that reasonable diligence could not have uncovered in time to move for a new trial under Rule 59(b), and including fraud.⁸¹ The diligence test therefore changes its measuring point. Under Rule 59 the question is whether diligence would have produced the evidence by the end of trial, and under Rule 60 the question is whether diligence would have produced it in time to move within the 28 days after judgment. Evidence a careful party could have found inside that period belongs in a timely Rule 59 motion, and a party who let the period lapse cannot use Rule 60 to recover the lost opportunity.

The juror contact fits the fraud ground once the deadline has passed. Discovered within the 28 days, the same event would support a new trial for jury misconduct, and a juror could testify to it because an outside influence on a juror is the exception to the bar on juror testimony about deliberations.⁸² Rule 60 is a narrow safety valve for cases the Rule 59 clock cannot reach, and it carries its own limits for a plain reason: if it could be used freely, the 28-day deadline would be a formality that every loser could bypass by waiting. Relief under Rule 60 is therefore no substitute for a posttrial motion or an appeal, and it is granted only in limited circumstances such as fraud or misconduct.⁸³