• August 21, 2019

Some years ago, we coined the term “whack-a-mole on steroids” to describe civil litigation. The central point is that trial is often the culmination of 1-2 years of work — sometimes far more, rarely much less.

Not 1-2 years of full-time work and focus, after which, one can imagine, a good trial lawyer would retain intimate knowledge of all of the details of a case. Rather, trials happen after intermittent flurries of work over a few years, interspersed with work on other cases, of course, with inactive intervening months. In short, it can be difficult for almost any trial lawyer to retain all or even most of the factual details.

Further, most civil trial lawyers only experience trials say, once in 5 years or so. On top of the thousands of facts of a particular case, there are the details of trial procedure (as opposed to all of the other rules of civil procedure) to keep track of. And the consequences of failing to adhere to a rule can be fatal to one’s case (or one’s appeal).

On top of all this, imagine trial lawyers substituting into a case right before trial…

Take Wright v. Nuvola, LLC (please). The underlying facts of this lawsuit are extraordinary and extraordinarily strange. Plaintiff Morgan Wright alleged a brutal rape by University of Minnesota professor Francesco Parisi. Parisi admanantly denied the allegations and, consistent with his denial, were many pieces of evidence (e.g., Ms. Wright’s failure to report these horrible allegations for over a year, her request to her doctor that the doctor back-date medical records, et al.).

Putting all of this aside, though, for purposes of our practice pointer, the critical issue is that Ms. Wright’s trial counsel sought to add witnesses at trial, was denied, and sought to appeal that decision. She lost that opportunity because her lawyers missed a prerequisite.

Wright failed to preserve her challenge to the district court’s denial of her motion to call additional witnesses. Wright made the request more than one month after the trial had started. The parties did not submit formal briefing, and the district court issued an order denying Wright’s request. After the case was submitted for a decision and the district court issued its findings of fact, Wright did not file a motion for a new trial. Because Wright requested permission to call additional witnesses after the trial began and did not file a posttrial motion for a new trial, she failed to preserve her challenge to the district court’s denial of her request, and the issue is outside the scope of our review.

Wright v. Nuvola at al. at p. 10.

Undoubtedly, it is not intuitive to ask a judge for a new trial based on a ruling that the judge made right before or during trial; what is the likelihood that the trial judge will reverse herself? The requirement of requesting a new trial seems pointless and futile. Regardless, this is one of the many rules that trial lawyers must keep in mind in addition to the many other possibly overwhelming demands of trial.

(In Ms. Morgan’s case, we posit that the loss of this issue on appeal would have made no difference. The case was the classic “he said/she said” case; it boiled down to credibility determinations of two witnesses, one of whom had to have been lying (or mistaken in a way that most would find dumbfounding) and Ms. Morgan’s credibility was a serious issue.

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