New-trial motion necessary?

Question: Must a party file a motion for new trial to preserve an issue for appeal? If a party does file a motion for new trial, does omission of an issue from the motion constitute waiver of the issue on appeal?

Answer to both questions: No. "[T]here is no requirement in the law that a party must raise an issue pursuant to a motion for new trial or else waive the issue for purposes of appeal. A party may elect to seek relief from the trial court through a motion for new trial if the party concludes that the trial court may be willing to grant such relief for the reasons given in support of the motion. However, a party instead may elect to proceed directly to the appeal." Hicks v. Steve R. Reich, Inc., 38,424 p. 4 (La. App. 2 Cir. 5/12/04).

My take: Whether this is true depends on the grounds for the motion. If the thrust of your new-trial motion would be to ask the trial court to change its mind about something that it's already considered, then the proposition probably holds. But if the motion would ask the trial court to consider something that it hasn't considered before (e.g. newly discovered evidence, juror misbehavior), then you may need to raise the issue first in the trial court before taking it upstairs to the court of appeal. (Just my opinion -- please don't rely on it.)

Posted by RPW at May 25, 2004 11:05 AM