Post Trial Motions — Litigation Part 10

Today, we finish our series on the litigation process. Whether looking at a motion for a new trial, motion to vacate or motion to stay enforcement there a number of post trial options. Attorney, Robert Enos, discusses post trial motions and how they impact litigation.

As always, if you have any questions about your real estate, business, estate planning, or any other legal issue, please let us know by e-mailing me at

Also, remember that we do legal presentations for business and community organizations. If your group would like to schedule a presentation related to real estate law, business law or litigation please contact myself to setup a date and time.

Post Trial Motions — Litigation Part 10
By: Robert J. Enos, Esq.

Today, marks the conclusion of our series on the litigation process and we will examine post-trial motions and their use. Post-trial motions exist in the gap between the moment the actual trial concludes and the time to file an appeal. Some post-trial motions are routine and filed as a matter of course, such as those filed to reduce a damages award. Others are very case specific, tailored to the evidentiary issues addressed throughout the course of the trial and how those rulings might have affected a verdict.

A Judgment Notwithstanding The Verdict is a procedure used by a party against whom a verdict has been rendered. By timely bringing this motion a losing aggrieved party can get an adverse verdict reversed if they were entitled to a Directed Verdict if that motion had been made earlier in trial. To be successful a party must bring this motion before the entry of judgement is entered.

Another motion used by a party who finds themselves on the losing side of a verdict is a motion for new trial. A motion for new trial asks the trial court to reexamine one or more issues of fact or law after a trial and decision by judge or jury. A new trial motion must be based on one or more of the following: Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. Still another basis for a new trial is the locating of newly discovered evidence, material for the party making the application, which he (or she) could not, with reasonable diligence, have discovered and produced at the trial.

Motion to Vacate Judgment: The trial court is empowered to set aside a judgment on either of two grounds “materially affecting the substantial rights of the (moving) party and entitling the party to a different judgment.” This motion to vacate may only be used to set aside a judgment based on a decision by the court (nonjury trial); or a jury’s special verdict. There are two grounds for a motion to vacate a judgment: Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts. Another is when a judgment or decree was not consistent with or is not supported by a special verdict.

Motion to Correct Judgment for Clerical Error: The court has the power either on motion of a party or sua sponte to “correct clerical mistakes in its judgment . . . so as to conform to the judgment. Motion to Set Aside VOID Judgment: A court also has power to set aside “void” judgments.

Motion for Stay of Enforcement of Judgment: A court has power to stay execution on a judgment for a limited period of time: no longer than 10 days after the deadline for an appeal (which is usually 60 days after the notice of entry of judgment is served).

Motion for Relief From Judgment: A court has power within 6 months after judgment entry to grant relief from the judgment on the grounds of “mistake, inadvertence, surprise or excusable neglect. This relief is mandatory where the moving party’s attorney files a “mea culpa” affidavit attesting to his or her mistake, inadvertence, surprise, or neglect (need not be excusable neglect). This type of motion is often seen when a party was unaware they were the target of a lawsuit at all and their default is taken because the mean upon which they were served, such as service of publication, did not in fact provide actual notice of the litigation. Courts liberally grant this motion because it serves the greater good if cases are tried on the merits.


The attorneys of BPE Law Group, PC. have been advising our clients on real estate, business and estate planning issues for over 20 years and have assisted numerous clients in business and real estate matters and have represented and advised brokers on their professional obligations as well as consumers on their rights. If you have questions concerning legal matters, give us a call at (916) 966-2260 or e-mail Keith at Our flat fee consult for new clients may get you the answers you need for the questions you have.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.