Wednesday, January 19, 2011
A Motion for New Trial Is Sometimes Needed to Preserve Error
Texas Rule of Civil Procedure 324(b) requires additional steps to preserve some error in Texas civil actions. As we have discussed in earlier posts, you don't generally get to complain about a trial judge's mistakes unless you objected timely, and let the judge know on the record what should have been done. Sometimes an error which might be important doesn't show up on the record. Generally, if you want to complain about something that hearing evidence would prove, you have to move the court for a new trial and have a hearing at which evidence is heard. You have to do this to inform the judge why the first trial was no good. Judges hardly ever grant motions for new trial (See the post before last.). If the judge does not grant you a new trial, your motion for new trial must make a record of why that failure to grant the new trial was a mistake on the judge's part. If you are going to complain that the facts that were found don't match the evidence, you have to make that complaint in a motion for new trial. This is also the place to complain about incurable jury argument, if the court has not already ruled on it (Again, an earlier post shows why there is likely no such thing as incurable argument anymore.).