Article: How to Win at Trial: Using Pre and Post-Trial Motions

Most defense lawyers try and resolve a case by filing Motion for Summary Judgment/Adjudication and, when that does not work, settling the matter privately or through mediation.  The problem with relying on the Motion for Summary Judgment/Adjudication is that they are rarely granted.

There are a couple of reasons.  For one, to prevail on an MSJ/MSA requires there be no triable issues of material fact.  This is a particularly high and even unique standard not met in most cases.  Add to that, Superior Court judges are not big on kicking plaintiff’s out of Court before they have their day in Court – a practice which sets judges up for being appealed.  That said, just because your MSJ/MSA doesn’t carry the day does not mean you should throw in the towel and settle.  Sometimes you just have to know your right and plan to hit the same points again at trial.  This is done through pre and post-trial motions.

Pre-Trial Motions

We obviously cannot give our entire playbook out in an article that is going to be published on the Internet, but we can tell you one effective way to win at trial is by filing motions in limine and, where appropriate, asking for evidentiary hearings to go with them.  In a recent case handled by the firm, the plaintiff alleged his tax preparer prepared tax returns without sufficiently determining his percentage ownership in a partnership.  Claiming more than $1.15mm in damages, the plaintiff sought to put on expert witness testimony that he would have possessed superior bargaining power with his former partner, resulting in numerous other alleged damages.

Wood Litigation, APC successfully brought a motion in limine arguing that this theory of damages was speculative and any claimed damages flowing from such argument should be excluded.  The firm asked for a 402 hearing so the judge could hear the plaintiff’s expert’s rather weak explanation as to how the damages tied to the harm alleged to have been caused by the defendant, our client.

After hearing testimony from the plaintiff’s expert witness and the plaintiff himself, the court determined that the proffered theory on causation was improperly speculative.  The plaintiff was prohibited from presenting over a half-million dollars of the plaintiff’s alleged damages to the jury. At this point, the available damages that the plaintiff could recover if he won everything he was asking for were less than the plaintiff’s last settlement offer.

The above is a great example of how pre-trial motions, like motions in limine, can be used to win points that are not winnable at the MSJ/MSA stage.  In the above case, we had significantly beaten the plaintiff back before opening statements had even begun.

Setting Up and Using Post-Trial Motions

There are options for defendants even in cases where the jury decides to award something to the plaintiff – not because they legally should but for some other reason.  Perhaps they want to punish the defendant for making a mistake even if the mistake did not cause any harm, for example.  In those instances where the jury comes back with a number, the defendant should consider whether a post-trial motion might turn things around.

One post-trial motion is the Motion for Judgment Notwithstanding the Verdict.  Defendants shouldn’t file an MJNOV in every case.  They cost money and are an uphill battle. But, in those cases where the jury gets it wrong, the MJNOV is there to fix it.

In the same case discussed above, in which the plaintiff was seeking damages allegedly resulting from the negligent preparation of tax returns, one of the components of damage the judge allowed to go to the jury was attorney’s fees.

Wood Litigation, APC successfully argued for and secured a special jury instruction barring the jury from awarding some but not all of the plaintiff’s attorney’s fees damages.  When the jury came back and awarded the plaintiff a portion of said fees and costs, the firm filed a JNOV and the court overturned the jury’s award.


There are, of course, plenty of cases that should be settled.  These are cases in which the plaintiff is well funded, the defendant has liability and there is a clear path for the plaintiff from that liability to a clear and articulable loss.  But, in those cases where the defendant has a legal ground to stand on, the court’s denial of defendant’s Motion for Summary Judgment/Adjudication is not the final word.  Defendants have options to cut claims before a trial has begun, and in some instances even after a jury comes in with a verdict in the plaintiff’s favor.

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