Should I Go To Trial?

What is a Trial?


When parties in a case cannot reach compromise, the case may end up in front of a judge or jury to decide. This most often takes the form of a trial, where each party has the opportunity to present his/her side of the case to hopefully reach a favorable outcome. Thorough preparation and the help of a skilled attorney can significantly increase your chances of success at trial, but the outcome is never guaranteed.


Are You Ready For the Ring?

What Can I Do After Trial?

After trial, a decision will be issued which tells the parties who wins and who loses. If the trial result is not what you were hoping for, there are still some additional steps that you might be able to take to try and achieve a positive outcome.


The particular options available to you will depend on what type of case you have, and on the specifics of your case. However, a few common options may include:


1) Ask the Judge to Amend or Modify the Order, or Ask for New Trial

Although these are distinct and separate motions, there is significant overlap between them and so they are addressed as a group here. You should always seek a lawyer to help you determine which motion is appropriate in your particular case or circumstance.


If you believe there was some type of mistake in how the court entered the order, or if there was something that happened during trial or before the order was issued that calls into question the validity of the result, it may be possible to ask the court to either:

  1. change its order to address the concerns or fix its own error; or

  2. redo the trial process itself to provide the parties with a new chance to present their cases, this time hopefully free of the issues that prevented a fair result the first time.

These motions can give you an important opportunity to correct an error outright, or to get another shot at trial. An opportunity for a new trial is especially important in some cases because, as discussed further below, a new trial may give the parties an opportunity to introduce new evidence, testimony, or to correct for some type of mistake or irregularity that occurred during the first trial. To the contrary, an appeal does not provide a similar opportunity, and will typically be decided solely on the testimony and evidence that was presented the first-time during trial.


2) Appeal the Trial Order


An appeal asks a higher court (appellate court) to look at the lower court’s decision, and to determine whether the decision was legally correct, or not. Importantly, an appeal is typically concerned only with whether the lower court’s decision was correct according to the law, or not. Generally, an appellate court may not allow you to submit any additional evidence that you did not introduce during trial, or to make any new arguments you forgot to mention during trial. The appeal process is not a new trial – an appeal is limited to a second review of the existing evidence and the related law to see if the lower court’s decision was supported by the law. That said, an appeal may still be an important remedy to you because sometimes judges can make mistakes, and a different judge or panel of judges may reach a different decision than a trial judge.


Factors You May Consider for Appealing A Decision

Again, except for certain circumstances, appeals are often determined based on the cold record of the case (i.e. written transcripts of testimony given, copies of documents, etc.), which has several additional consequences. For one, certain types of issues are more ready for appeal than others. How the judge calculated damages, for example, may be more objective, and better preserved for appeal due to the fact that all of the information that went into the decision is accurately represented in writing. On the other hand, how a party or witness conducts themselves in the court room may be harder to described in the record, which may ultimately affect his/her credibility. Therefore, issues such as witness credibility may be challenging for an appellate court to analyze based on the written record. Because the trial judge is the one who gets to see and hear the witness in-person, and so they are presumably the person best positioned to determine if they were lying, telling the truth, etc.

Another important consideration for appeal, is that the higher court may only consider certain issues that were raised during trial. For example, if a trial judge found certain evidence should be excluded or not be heard by jury, and you want to appeal that decision, you need to make an objection during trial. The appeals court may not consider if no issue was raised on that point at trial. For this reason, it is important to thing about your potential appeal during trial, and before a decision is ever made. If potential issues are not raised at trial, you may not be able to appeal them. It is best you should discuss with a skilled attorney who can help you think ahead and preserve issues for appeal, and make sure that the record provides an appellate court with the material they may need to make an informed decision. Depending on the complexity of the case, an appeal can be a long process, and can involve multiple levels of the courts. Additionally, an unfavorable result on appeal might itself be eligible to be challenged further, and/or escalated to an even higher level of the court system. For this reason, an appeal can also be an expensive process, including hundreds of dollars in filing and administrative fees alone. This is yet another reason why it may be wise to exhaust any and all options described in the previous section before relying on an appeal to achieve your goals.


3) Suspend Enforcement of the Order

If you intend to exercise one of the post-trial options described here, or if you believe that there is some other issue that should be dealt with prior to the order taking effect, it may be possible to ask the court to suspend its order while those issues are addressed. In some cases, enforcement of the order may be automatically suspended if you exercise your right to appeal the decision. Commonly that is not the case, however, so it is necessary to ask the court to push pause on some or all of the terms of the order for some period of time.


Time Is Of The Essence

It is important to note that some or all of these options may have strict deadlines associated with them, some of them quite short. For this reason, it is important to consult with a lawyer. Upon receiving the decision, you must act quickly to preserve your rights to one or more of these options.

It may also worth noting that some attorneys specialize only in trial, or only in appeals, and not both. For this reason, you may want to explore retaining different, or additional, legal counsel if you believe your appeal may be particularly difficult or complex.


Nebraska Statutes Referenced

- 25-1078. Temporary injunction; modification; dissolution; supersedeas bond. (link)

- 25-1079. Temporary injunction; modification; dissolution; supersedeas bond; when executed; form; contents. (link)

- 25-1911. Appellate jurisdiction; scope. (link)

- 25-1912. Appeal; civil and criminal actions; procedure; notice of appeal; docketing fee; filing of transcript. (link)

- 25-2001. District court; power to vacate or modify judgments or orders. (link)

- 25-1080. Temporary injunction; modification; dissolution; supersedeas bond; effect. (link)

- 25-1329. Motion; when filed; filing before entry of judgment; treatment. (link)

- 29-2101. New trial; grounds. (link)

- 29-2102. New trial; affidavits; when required; motion; hearing. (link)

- 29-2103. New trial; motion; how and when made. (link)


Disclaimer: This article is for education purpose only. It does not offer any legal advice and should not constitute attorney-client relationship. Legal decisions may have serious consequences. You should consult with a lawyer for specific issues you wish to discuss.






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