• August 18, 2011

Imagine you are a trial lawyer and your opposition proposes to offer the testimony of a supposed expert  into evidence who is, in your view, incompetent and unable to offer any valuable insight or any valid testimony. 

You object, of course, to the admission of this evidence at trial.  You explain to the judge that the supposed expert is, in your view, incompetent and unable to offer any valuable insight or valid testimony. 

The judge overrules your objection, admits the testimony at trial, and relies on this expert’s testimony in finding that your client loses the lawsuit.  What next?  Appeal? Not so fast…

Court rules require that you move for amended findings or for a new trial after you have lost before the trial court in order to preserve the issue for appeal.  In a very real sense, court rules require trial lawyers to appeal adverse decisions to the very judge who made the adverse decisions as a condition for later review by the Court of Appeals. 

This is no hypothetical.  In the Continental Retail decision of the Minnesota Supreme Court, decided this week, a concuring opinion joined by three Supreme Court justices make clear their serious reservations about the competency of a Hennepin County expert opinion on the valuation of real property (for purposes of determining appropriate taxes).  The decision nevertheless went unanimously against Continental Retail because there had been no motion for amended findings or motion for a new trial after Continental Retail lost before the trial judge.  As such, the Court held that the “appellate review of this issue is precluded.” 

It might seem counter-intuitive that, when a judge has ruled against you, you need to ask the judge to change her mind and rule in your favor but that is the rule and the second request is your key to appellate review.

Leave a Reply

Your email address will not be published. Required fields are marked *