Timing of the Motion

Timing of the Motion

A new trial motion can rest on the strongest ground in the book and still fail because it arrives late. Rule 59(b) requires that the motion be filed no later than 28 days after the entry of judgment.¹ That period runs from one fixed event, and it governs every ground taught above, whether the movant complains that the verdict is against the weight of the evidence, that the trial process was flawed, or that new proof has surfaced. A motion that satisfies every substantive standard but arrives after the period closes gives the court nothing to decide. Timing is therefore the threshold question in any new trial analysis, and a party who finds new proof after the 28 days have run no longer has a Rule 59 motion to file.

The deadline is short because a judgment is a signal that other people rely on. Once it is entered, the winner may collect on it, release money held in reserve against a possible loss, and plan around the result, and everyone who deals with either party adjusts to it as well. If the loser could ask for a new trial at any time, none of those decisions would be safe. A fixed window marks the moment the uncertainty ends. The cost falls on the movant, who loses a good ground by waiting, which is why the date of entry of judgment is the first date a careful lawyer calendars after a verdict.

Three questions fall under this heading, and each has its own rule. The first is how the 28 days are measured and what follows when a party misses them. The second is whether a judge may order a new trial when no party has asked for one. The third is how a movant who relies on sworn statements must file them and how the opposing party may answer. Each rule sets a clock or a condition that decides whether the court ever reaches the merits.

The 28-Day Deadline

Rule 59(b) states the limit in one sentence: a motion for a new trial must be filed "no later than 28 days after the entry of judgment."² The clock starts at one identifiable event. It does not start with the verdict, with the day the movant learns of a problem, or with any later ruling. A jury returns its verdict first and the court enters judgment on it afterward, so the 28 days run from the second event, and each side can see the day the window opens and the day it closes. The consequence of missing it is severe, because failure to move within the period is fatal.³

Courts apply the limit strictly. The tendency has been to hold that neither waiver, nor estoppel, nor acquiescence by the opposing party can permit the court to act on an untimely motion.⁴ The deadline restrains the court as much as it protects the winner, so the opponent's consent cannot hand the court a power the rule withholds, and the court has no power of its own to enlarge the period. One narrow doctrine runs the other way. Relief has been allowed when a party was misled by action of the court purporting to enlarge the time, even though the court lacked power to make the order.⁵ By its terms the doctrine concerns reliance on the court's own act, so it does not reach a party who miscounted the days or who relied on an adversary's promise.

The window also marks the last chance to put a problem before the trial judge, which matters because appellate courts review and do not start over. Given that second-resort role, the ordinary rule is that, absent exceptional circumstances, a party may not raise on appeal an error it did not first ask the trial court to correct.⁶ A timely new trial motion is one way of asking the trial judge to correct an error, and the procedure exists so that the judge can do so and spare the parties a time-consuming appeal.⁷ A party who lets the period lapse has lost that route.

The rule sets only a latest date, so an early motion raises no timing problem.⁸ In Cooper, the new trial motion was filed before final judgment was entered and was still timely. The timing logic otherwise runs forward from the verdict. A new trial motion assumes that there was enough evidence to reach the jury and tests whether the resulting verdict is nevertheless clearly erroneous, either because it is against the weight of the evidence or because the trial process was flawed.⁹ A weight-of-the-evidence complaint therefore cannot even be framed until the jury has returned a verdict. A party who sees a process error earlier can ask the court to declare a mistrial.¹⁰

The count can also begin from a judgment the movant never wanted. Suppose a plaintiff wins a verdict and the trial judge then takes it away by granting judgment as a matter of law to the defendant. If the plaintiff has objections to the trial that would support a new trial, Rule 50(d) lets her move on them after her verdict is nullified, within 28 days of the entry of the judgment for the opposing party.¹¹ If the judge instead denies the motion for judgment as a matter of law, the verdict winner has no reason to ask for a new trial, since she already holds the verdict. Rule 50(c) preserves her position for the appeal: if the court of appeals reverses the judgment, she may assert grounds entitling her to a new trial should the appellate court conclude that the trial court erred in denying the motion.¹² The combined-motions section takes up that arrangement.

Missing the date is easiest when a party treats the new trial motion as something to file after another motion is decided. Potter loses a jury trial and files a timely Rule 50(b) motion for judgment as a matter of law. She waits for the ruling and then moves for a new trial on the thirty-fifth day, citing an erroneous instruction. The new trial motion is untimely. The rule measures from entry of judgment and names no other starting event, and even a verdict winner whose verdict has been nullified must move within 28 days of the judgment entered for her opponent.¹³ The judge cannot repair the mistake by ordering a new trial on her own, because that power expires on the same day, as the next subsection explains. The safe practice is to file the new trial motion inside the 28 days whatever else is pending.

Timeliness also matters beyond the motion itself, because a timely motion postpones the time to appeal. In civil cases the time to appeal is extended by a motion for judgment as a matter of law under Rule 50(b), a motion to amend the findings under Rule 52(b), or a motion for a new trial or to alter or amend the judgment under Rule 59.¹⁴ Consider Tolliver, who files a Rule 59 motion two days after judgment. The motion suspends the finality of the judgment, and she cannot appeal until the court decides it.¹⁵ The time to appeal then runs from the order disposing of the motion. The tolling depends on the motion's own timeliness, because a posttrial motion must itself be timely if it is to extend the time for appeal.¹⁶ A late new trial motion therefore fails twice: the court has no power to grant it, and the appeal clock keeps running while the movant waits.

Exam stems often pair a strong ground for a new trial with a late filing and a gracious opponent, and the correct answer in that setting is that the court never reaches the ground.

Court's Own Initiative

Rule 59(a)(1) frames the new trial as relief the court grants on motion, and Rule 59(d) gives the judge two ways to act beyond what a party asked.²⁰ No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may also grant a timely motion for a new trial for a reason the motion did not state. In either event the court must specify the reasons in its order.²¹ The first power belongs to the judge alone, while the second builds on a party's filing. Together they give the judge more room than the parties in the grounds available and no more room in the time available.

The rule lets the judge act unprompted because of what a new trial is for. The motion gives the trial judge a chance to correct errors that occurred and so to avoid a time-consuming appeal, and a judge who watched the proceeding can judge those errors better than any appellate court.²² A judge who saw a prejudicial mistake but had to wait for a lawyer to name it would have to leave the mistake in place. Most procedural rules therefore authorize the court to order a new trial on its own, at least within the same period that governs the parties.²³ Rule 59(d) expressly authorizes a new trial on the court's own initiative within 28 days after entry of judgment for any reason for which a party could have sought one.²⁴ That standard borrows the whole body of grounds taught earlier, so the judge may rely on the weight of the evidence, an error in the trial process, or newly discovered evidence even if no lawyer has mentioned it.

The time ceiling is the one that binds the parties. The judge's own power ends 28 days after entry of judgment, the same day a party's Rule 59(b) period ends.²⁵ The party side has the same ceiling even in the unusual posture of Rule 50(d), where a verdict winner who lost her verdict to judgment as a matter of law has 28 days from the judgment for her opponent.²⁶ The shared limit protects the party deadline itself. If the court could order a new trial on its own after the 28 days, a late movant would need only to call the problem to the judge's attention and hope the judge adopted it as the judge's own, and Rule 59(b) would bind no one. For that reason a court cannot grant a new trial on its own initiative outside the time limit allowed for a party's motion.²⁷

The second power addresses a different problem, the specificity of the grounds a party names. Before the 1966 amendment to Rule 59(d), the precision with which a motion described its grounds was a real difficulty, and courts were left to decide how much specification was enough.²⁸ The amendment eased the problem by providing that if there is a timely motion, the court may grant a new trial on a ground not stated in the motion, and a motion that reasonably specifies its grounds is read broadly.²⁹ The condition of notice and an opportunity to be heard protects the verdict winner. That party has prepared to defend against the grounds the motion named, and a ground that first appeared in the order would give the party no chance to answer it. The hearing restores that chance, and the requirement that the motion be timely keeps this power inside the same 28-day boundary.

The grant is proper because the motion was timely, the parties had notice and a chance to be heard, and the order states its reasons. A judge who made the same ruling without telling the plaintiff would skip the condition the rule attaches to this power. A defendant who filed the identical motion on the thirty-fifth day would give the court nothing to grant, since an untimely motion cannot support the second power at all.

The requirement that the court specify its reasons applies to both powers. An order that states why a new trial was ordered gives anyone who reviews it a concrete basis to examine, and it forces the judge to rest the grant on a recognized ground instead of a general sense that the result was wrong. A common exam error is to read the court's own-initiative power as freedom from the deadline. The judge's power is wider than a party's in the grounds it may use and exactly as short in the time it has.

Supporting Affidavits

Rule 59(c) sets the mechanics for a new trial motion that depends on sworn written statements. When a motion for a new trial is based on affidavits, they must be filed with the motion, the opposing party has 14 days after being served to file opposing affidavits, and the court may permit reply affidavits.³¹ An affidavit is a witness's written statement of facts, sworn under oath, and it lets the court receive a witness's account without calling the witness to the stand. Many grounds need no such proof, because a weight-of-the-evidence challenge and many claims of instructional or evidentiary error can be judged from the trial record the judge already has. Other grounds rest on events the record never captured. A juror's contact with a party, a witness who surfaced only after judgment, and the searches a movant made before trial all lie outside the transcript. The trial court is where a movant must first present such facts, because an appellate court reviews what the trial court had before it, and the ordinary rule is that a party may not raise on appeal an error it did not first ask the trial court to correct.³² Affidavits put those facts before the judge so that the motion can be decided without a second trial.

The rule gives each side one turn, in an order that fits the short window the rest of Rule 59 allows. Filing the affidavits with the motion means the movant must hold the sworn proof when the motion is filed and cannot promise it later, which tells the court and the opponent at the outset exactly what factual showing is claimed. The requirement also keeps the 28-day deadline meaningful, because a movant could otherwise file a bare motion inside the period and assemble the real evidence afterward.³³ The 14 days for opposing affidavits run from service of the motion papers, so the opponent gets a fair and quick chance to dispute the facts. Reply affidavits depend on the court's permission, because the movant has already had the first word and an automatic reply would let the exchange continue indefinitely.

Meeting that sequence does not make every affidavit usable, because an affidavit is evidence and the ordinary limits on evidence still apply to it. Consider a plaintiff who loses a jury verdict and files a timely new trial motion with two juror affidavits attached. In the first, a juror swears that the foreperson told the others to disregard the judge's comparative-fault instruction and that she voted for the defense only to end the argument. The court may refuse to consider those statements, because they describe how the jury deliberated and reasoned, and the motion is then left without factual support. In the second, a juror says the defendant stopped him in the courthouse garage during a recess and urged him to hold out for a defense verdict. That statement describes an outside influence, so the court may consider it. The defendant then has 14 days after service to answer with affidavits denying the encounter, and the court may allow the plaintiff a reply affidavit before it decides whether the contact probably affected the verdict.

The two scenes follow the same filing sequence, and the only difference lies in what each affidavit says. Rule 59(c) controls when and how affidavits arrive, while the rule of evidence that excludes juror testimony offered to impeach a verdict, Federal Rule of Evidence 606(b), controls what a juror may say in them.³⁴ Under that rule, a juror's testimony is inadmissible to show what was said or what occurred during deliberations or what influenced a juror's mental processes. The exceptions cover extraneous prejudicial information improperly brought to the jury's attention and any outside influence brought to bear on a juror.³⁵ The jury generally may not impeach its own verdict, so a juror's account of misconduct inside the room cannot carry the motion, and only evidence from a third party will suffice for that kind of claim.³⁶ An affidavit from a court officer who watched the garage encounter therefore faces no such limit, since it comes from outside the jury. The limit protects the candor and finality of deliberations, which would suffer if every dissatisfied juror could be summoned after a verdict to explain how it was reached.

Exam stems usually pair a timely motion and a properly sequenced set of affidavits with a juror statement that describes the deliberations, and the correct answer is that the court may disregard that affidavit for that reason alone.