Nonjury Trials

A motion for a new trial after a bench trial goes back to the judge who tried the case, and that fact reshapes the remedy. In a jury case a new trial means a different jury, one hoped to be more favorable; in a nonjury case the motion goes to the same judge who already decided it.¹ Rule 59(a)(1)(B) lets that judge grant a new trial “for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.”²

The contrast with jury practice goes deeper than who hears the motion. When a jury has returned a verdict, the judge weighing a new trial motion acts to some extent as a “thirteenth juror,” making an independent assessment of the evidence and asking whether the verdict is so strongly suspect that justice calls for another jury.³ After a bench trial no verdict stands between the judge and the decision, so the judge can simply think again, and Rule 59(a)(2) supplies the tools. On a motion for a new trial the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.⁴

Because the judge can correct an error directly or reopen the record for more evidence within 28 days after entry of judgment, a new trial is a less significant post-trial device in nonjury cases than in jury cases.⁵ The subsections below take up the standard for granting the motion, the two powers that supplement the record, and the two that revise the decision.

Grounds After a Nonjury Trial

Rule 59(a)(1)(B) lists no grounds for a nonjury new trial. It adopts the reasons that supported rehearings in federal equity practice, so the working content of the standard lives in decided cases.⁶ The jury clause borrows from practice at law in the same way, and the equity borrowing explains why the nonjury remedy is called a rehearing.

In everyday use the motion goes by that name. A Rule 59 motion after a bench trial is commonly called a motion for rehearing, but it is the same motion under the same rule, and it must be filed no later than 28 days after entry of judgment.⁷ The loser of a bench trial holds the same right to move as the loser of a jury trial and states the ground in the motion itself, such as a ruling that kept out important proof.

The borrowed standard stays flexible because the decision-maker stays available. A jury is discharged once it returns its verdict, so a flaw in a jury trial usually means starting over before a fresh jury. After a bench trial the motion goes to the judge who heard the evidence and made the findings,⁸ and within the 28-day period that judge can correct a mistake directly or reopen the record to take more evidence.⁹ A rehearing can therefore aim at the one thing that went wrong and leave the rest of the trial alone.

The two complaints do not fare alike. The excluded drafts are the natural ground for rehearing. If the judge decides they should have come in, he can reopen the hearing, receive them, and reconsider the case with that proof in the record, without retrying anything else. The rehearing can be short, because the judge has already heard the rest of the evidence and settled the governing legal rules.¹⁰

The agent's letter is a much weaker ground. The rules of evidence apply in nonjury cases, but appellate courts presume that a judge sitting without a jury relied only on properly admitted evidence, so erroneous admission seldom becomes the basis for reversal.¹¹ The same presumption explains the advice that a judge trying a case alone should be slow to keep out challenged evidence, since a mistaken exclusion can lead to reversal while a mistaken admission usually does no harm.¹²

The asymmetry has a simple mechanism. A presumption can treat evidence the judge heard as disregarded, but it cannot supply evidence the judge never heard, so wrongly excluded proof leaves a gap that only a rehearing or a reversal can fill.

A motion resting only on admission still has a theory behind it: the judge sustains the objection and reconsiders without the inadmissible evidence. In practice it is doubtful that a judge can truly set aside persuasive evidence already heard merely because the rules of evidence would have barred it.¹³ Such a motion has thin prospects, while the exclusion complaint shows the rehearing at its most useful.

The loser of a bench trial who wants the judge to think again should file the motion: in a nonjury case, if you lose, move for a new trial.¹⁴ Although the motion is the safe course, the preservation rules do not always demand it. A party generally may not raise on appeal an error it did not first ask the trial court to correct,¹⁵ but a party who stated its objection when the ruling was made need not repeat it, because it need only state the action it wants the court to take or objects to, along with the grounds.¹⁶ The Rule 52(b) motion to amend findings, taken up below, may be joined with the new trial motion, so one filing can carry both requests.¹⁷ Whichever route a party takes, the 28-day period governs and the court cannot extend it, so a party who waits past it loses the motion and keeps only what the appeal can offer.¹⁸

Additional Testimony and Opening Judgment

Rule 59(a)(2) gives the court four corrective powers after a nonjury trial, and the first two work on the record and on the judgment already in place: the court may open the judgment if one has been entered, and it may take additional testimony.²⁰ The other two powers, revising findings and entering a new judgment, belong to the next subsection.

To see why these powers fit a bench trial, start with what a jury case lacks. A jury that has returned its verdict is discharged and cannot be recalled to hear evidence that was wrongly kept from it, so the only way to give both sides a full hearing is to retry the case before a new jury.²¹ After a nonjury trial the decision-maker is still available, because the motion goes to the same judge who decided the case.²² That judge has already heard the other evidence and settled the legal rules governing the dispute, so nothing requires a return to square one.²³

The power to take additional testimony answers the complaint that the judge failed to consider certain evidence. If that is the movant's only objection and the judge agrees, the judge can reopen the hearing, receive the evidence, and reconsider the case with it in the record.²⁴ The rehearing can therefore be brief, because it augments the record instead of replacing it.²⁵ The economy has a simple mechanism behind it. An erroneous exclusion damages the decision only through the missing proof, because every other finding rests on evidence the judge heard and weighed. Supplying that proof repairs the one defect, while repeating unchallenged testimony would cost the parties and the court a second trial and improve nothing.

The power to open the judgment solves a different problem. A party has until 28 days after entry of judgment to move,²⁶ so a judgment may already stand when the court takes up the motion, and a standing judgment would otherwise block deciding the case again. Opening it clears the way for reconsideration on the supplemented record, and the power to direct a new judgment, covered next, finishes the job. The qualifier if one has been entered confines the power to cases in which a judgment exists, since only then is there anything to open. Both powers operate within the 28-day window, during which a nonjury judge can correct her own error or simply reopen the record to take more evidence.²⁷

A jury verdict on the same facts would have ended differently. The wrongly excluded order would have had to go to a new jury, which would hear all of the evidence again.

The objection can also run the other way, and then these powers do much less. If the movant complains that the judge received evidence the rules should have barred, nothing is missing from the record, so no additional testimony is needed. The judge can at most open the judgment, sustain the objection, and reconsider the case without the inadmissible proof. Whether a judge can truly disregard persuasive evidence already heard is, as noted above, doubtful, and appellate courts presume that a judge sitting without a jury relied only on properly admitted evidence, so an erroneous admission seldom changes the result.²⁸ A complaint of exclusion thus uses both powers, while a complaint of improper admission offers only reconsideration by a judge who has already seen the proof.

The common exam error is to treat a nonjury new trial as a smaller jury retrial, with a new fact-finder and a full presentation of the case. The motion goes to the same judge, and Rule 59(a)(2) lets that judge supplement the record or open a judgment already entered. A question describing a bench trial with wrongly excluded evidence should therefore end in a reopened hearing and a reconsidered decision, not a second trial.

Amending Findings and New Judgment

Rule 59(a)(2) completes its list by authorizing the court to “amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.”³⁰ The powers covered above change what the record contains; these two change the decision itself. A judge who tries a case without a jury produces findings of fact and conclusions of law, and the judgment follows from them, so correcting the decision means correcting the findings and conclusions first and then entering a judgment that matches. Revised findings with the old judgment left standing would leave a judgment that contradicts the decision it is meant to carry out.

The rule names two ways to revise the findings, and they answer different needs. Amending adjusts a finding or conclusion the judge already made, as when a fact was misstated or a legal standard misapplied. Making new findings fills a gap or replaces a determination, as when the first set never reached an issue that was tried. Either way the same judge does the work, usually on the record already made, so the motion needs neither a new fact-finder nor a second trial. A nonjury judge can often cure an error entirely within the 28 days after entry of judgment, which is why a full retrial is seldom the only tool available.³¹

The judge in that scene corrected a legal mistake with evidence already received, so nothing had to be reopened. Had the mistake been the exclusion of a document, the judge would have combined powers, taking additional testimony first and then revising the findings and entering a new judgment. A student who answers every nonjury new trial question by describing a second trial has overlooked that the rule gives the judge this menu of corrections.

Rule 52(b) is the companion to this power. A motion to amend the findings is authorized by Rule 52(b) and may be joined with a motion for a new trial, so a single filing can carry both requests.³² Rule 59(a)(2) lets the judge revise findings once a new trial motion is made, while Rule 52(b) supplies a motion aimed at the findings themselves.

The purpose of the Rule 52(b) motion explains why it works differently from a jury-case new trial. Its primary purpose is to enable the appellate court to obtain a correct understanding of the factual issues the trial court determined. Though it resembles the jury-case motion on the surface, it has a different function: in a jury case a new trial goes before a different jury, while here the motion goes to the judge who already decided the case, and in practice it is not much used.³³ The motion is likewise not required as a prerequisite to appeal.³⁴

That general statement needs one refinement. A challenge to the sufficiency of the evidence is preserved without a further motion, but a challenge to the completeness of the findings may be forfeited unless the party asks the trial court to address the gap, as through a Rule 52(b) motion.³⁵ In Miller v. Bittner a party never told the trial court that it had failed to specifically address an issue the party raised at trial, and the Eighth Circuit held the objection waived, because the party had deprived the trial judge of the chance to address the alleged error and make further findings.³⁶

The reason is practical. A gap in findings is something the trial judge can fill quickly with the record fresh, while an appellate court can only send the case back. That is the ordinary preservation rule at work: a party may not raise on appeal an error it did not first ask the trial court to correct.³⁷ If a party could hold the complaint in reserve until appeal, silence at trial would become a free option.

The manufacturer acted while the trial judge could still fill the gap, which the party in Miller did not do.³⁸ Had the manufacturer argued only that the evidence could not support the findings the judge did make, it would have needed no motion at all, because that kind of challenge survives without one.³⁹

The 28-day period governs both routes, and the court cannot extend it. A Rule 59 motion must be filed no later than 28 days after entry of judgment,⁴⁰ and a Rule 52(b) motion runs on the same clock. The short fixed window matches the purpose of the power: it lets the judge correct or complete the decision while the evidence is fresh, gives the appellate court a precise record, and ends uncertainty about the judgment before anyone relies on it. A party who lets the period lapse cannot ask the judge for more time and is left with whatever the appeal can provide.