LITIGATION: CAN YOU GET A DO OVER?
Until recently, the judge’s power to declare a civil trial’s outcome as unacceptable and to order a “do over” was virtually unlimited. While this might appear unfair on first blush, it was actually designed to ensure fairness. Although used sparingly, the power to grant a new trial “in the interest of justice” (the magic words), allowed a judge, who would be more knowledgeable about the law and about how trials generally proceed, to make a determination that, taken as a whole, a particular trial had simply produced a patently unjust result. The appellate courts formerly gave great deference to this function of the trial judge, often pointing out that the trial judge had the opportunity to see and hear the entire trial including each witness’s testimony giving the trial judge greater clarity in determining whether justice had been served. Unfortunately, a recent Texas Supreme Court opinion appears to severely limit this useful power and suggests that the appellate courts want to determine from their lofty and remote quarters whether justice was served or not. The problem with this approach is that these justices are not present at the trial. They do not observe nuances such as whether a witness answers questions promptly and directly or rather seem to pause as though perhaps trying to craft a story on the spot. They do not watch to see if perhaps the jury might be unduly swayed by an emotional argument that does not reflect the evidence presented. Trial judges may still order a new trial “in the interest of justice”, but they must now detail the reasons they did so and they will be second guessed by appellate justices. For the reasons I’ve noted, among others, I think this is a step in the wrong direction. A link to the Texas Supreme Court case mentioned, Toyota Motor Sales USA Inc. can be found at
The case came before the Texas Supreme Court as a mandamus case, so the opinion reads differently than would a typical appeal from a jury verdict followed by a judgment based on that verdict. Keep this in mind as you read the case. The point I am making is that the appeals court is usurping the perogative of the trial court which is the court closest to the people and to the trial of the case itself. © Roland Brown 2014