The Grant of a New Trial: Potential Restrictions on New Evidence, Discovery, and Witnesses
Published .
A jury verdict does not necessarily end the trial.
Maryland Rule 2-533 permits the trial court to grant a new trial. Another trial may also result from an appellate reversal, a mistrial, a hung jury, or a party’s election following a conditional remittitur.
Before considering what happens at Trial Two, it is useful to understand why Trial Two may occur in the first place.
Why May a New Trial Be Granted?
A motion for new trial asks the trial judge to determine whether the verdict or something that occurred during the proceedings makes it unjust or legally improper to allow the result of Trial One to stand.
The grounds are varied and frequently depend upon the circumstances of the particular trial.
An Excessive or Inadequate Verdict
A damages award may be so high—or so low—that the trial judge concludes it cannot fairly stand.
As discussed separately in the Legal Library’s article on remittitur and additur, the judge may sometimes address the problem through a conditional adjustment of the award. If the condition is rejected, another trial may follow.
A Verdict Against the Weight of the Evidence
A motion for new trial is different from a motion for judgment notwithstanding the verdict.
JNOV asks whether the evidence was legally sufficient to permit the jury’s verdict.
A new-trial motion can present the broader question whether the verdict is sufficiently contrary to the weight of the evidence that allowing it to stand would be unjust.
The evidence therefore may have been legally sufficient to reach the jury while still supporting a request for a new trial.
Post-Trial Challenges to Evidence and Other Prejudicial Events During Trial
A motion for new trial may also challenge evidentiary rulings or other events occurring during Trial One that the moving party contends prejudiced the fairness of the proceeding.
The challenge may involve evidence that was improperly admitted.
It may involve important evidence that was excluded.
It may involve an expert being permitted—or prohibited—from expressing a particular opinion.
It may concern testimony that exceeded a pretrial ruling, a reference to excluded material, an improper question that placed prejudicial information before the jury, or evidence that was admitted for a limited purpose but allegedly used for another.
But the issue is broader than evidence.
A party may contend after trial that something else occurring before the jury created unfair prejudice. Depending upon the case, that might include:
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improper remarks during opening statement or closing argument;
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references to matters outside the record;
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violation of an order in limine;
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repeated attempts to place excluded evidence before the jury;
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prejudicial questioning even though an objection was sustained;
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misconduct by a witness;
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an unexpected event in the courtroom;
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improper contact with jurors;
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juror exposure to outside information;
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an erroneous jury instruction;
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failure to give a required instruction;
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irregularities in the verdict form or jury deliberations; or
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a combination of events that allegedly deprived a party of a fair trial.
Not every mistake or irregularity justifies throwing out a verdict.
Trials are rarely perfect.
The important question is ordinarily whether the challenged event created sufficient prejudice to undermine confidence in the fairness of the trial or its result.
Cumulative Prejudice
Sometimes no single event appears serious enough, standing alone, to require another trial.
The argument may instead be that several errors or prejudicial events, considered together, affected the fairness of the proceeding.
That makes the post-trial motion important for another reason: it permits counsel to place the challenged events in the context of the entire trial rather than viewing each incident in isolation.
The trial judge is particularly well situated to evaluate that argument because the judge witnessed the proceedings as they occurred.
Preservation Still Matters
A post-trial motion is not ordinarily an opportunity to remain silent during trial and complain for the first time after an unfavorable verdict.
Objections should generally be made when the alleged error occurs so that the trial judge has an opportunity to address it immediately.
Depending upon the circumstances, the court may be able to strike testimony, instruct the jury to disregard something, give a curative instruction, limit further questioning, or otherwise prevent prejudice before it affects the verdict.
Failure to preserve an objection can therefore become important both in post-trial proceedings and on appeal.
Jury Misconduct
Jurors are supposed to decide the case solely from the evidence admitted in court and the law provided by the judge.
Problems may arise when jurors conduct outside research, obtain information from the Internet, communicate improperly about the case, conceal material information during voir dire, consider matters not in evidence, or otherwise violate the court’s instructions.
Depending upon the nature and effect of the misconduct, another trial may be required.
An Inconsistent or Defective Verdict
Sometimes the jury’s findings cannot be reconciled.
Special verdicts and interrogatories can reveal findings that are legally inconsistent with one another. A verdict may also be incomplete, ambiguous, or otherwise defective.
If the problem cannot properly be corrected before the jury is discharged, another trial may become necessary.
Newly Discovered Evidence
Evidence discovered after trial can, in appropriate circumstances, support a request for another trial.
But “newly discovered” does not simply mean counsel found it late.
Courts distinguish genuinely unavailable evidence from evidence that reasonable diligence could have uncovered before Trial One. Otherwise, every unsuccessful party could continue investigating after the verdict and attempt to try the case again with better proof.
A Hung Jury or Mistrial
Not every second trial follows a post-verdict motion.
The jury may be unable to reach a verdict. A mistrial may be declared because of a prejudicial event or circumstances making continuation of the trial impossible.
In those situations, there may be no verdict to set aside. The case simply must be tried again.
Appellate Reversal and Remand
An appellate court may determine that legal error during Trial One requires another trial.
The appellate court may order a complete retrial or limit further proceedings to particular issues.
That distinction becomes extremely important because the trial court and parties are bound by the appellate mandate.
A New Trial Does Not Mean Starting Over
However Trial Two comes about, one assumption can cause serious trouble:
A new trial is not a new lawsuit.
The pleadings, discovery already conducted, expert designations, scheduling orders, and expired deadlines do not necessarily disappear merely because the case will be tried again.
Trial One often teaches a lawyer exactly how the case could be improved.
But the opportunity to try the case again does not necessarily include the opportunity to rebuild it.
What Exactly Has Been Reopened?
The first questions should be:
Why is there another trial?
and
What exactly is being tried again?
A complete retrial following a hung jury may present different procedural questions from a damages-only retrial.
A retrial following remittitur may differ from one following appellate reversal.
An appellate mandate may conclusively resolve liability while returning damages for another jury.
The reason and scope of the retrial therefore matter from the outset.
The Scheduling Order Does Not Necessarily Disappear
Maryland Rule 2-504 gives trial courts substantial authority over scheduling and case management.
By Trial One, deadlines for discovery, amendments, expert designations, and dispositive motions ordinarily have expired.
Another trial does not automatically reset them.
Trial One frequently exposes weaknesses in a case. Perhaps another expert would have been helpful. Additional records would strengthen causation. A different specialty could answer a defense position that became important during trial.
Those may be excellent reasons for wanting additional evidence.
They do not necessarily create a right to introduce it.
Discovery May Be Limited
Additional discovery may be appropriate when circumstances genuinely change.
An injured plaintiff may undergo additional treatment, incur additional expenses or wage loss, improve or deteriorate, or develop complications between trials.
The court may permit discovery concerning those developments without reopening the entire case.
There is an important distinction between updating the evidence because something new happened and rebuilding the evidence because Trial One revealed how the case could have been tried better.
The latter may be considerably more difficult.
New Experts and Witnesses
The problem becomes particularly significant with experts.
After Trial One, counsel may realize that another specialty is needed or that another expert could answer a defense position more effectively.
But if the expert-designation deadline expired before Trial One, another trial does not necessarily create a new designation period.
The court may consider why the witness was not identified earlier, whether the proposed testimony concerns genuinely new developments, prejudice to the opposing party, whether responsive experts and additional depositions will be required, and whether the new evidence will delay retrial.
Counsel therefore should not assume:
“Now that I have seen their case, I can fix mine.”
The court may conclude that the opportunity to develop that evidence existed before Trial One.
Mahler v. Johns Hopkins Hospital
I encountered this problem directly in Mahler v. Johns Hopkins Hospital, Inc., 170 Md. App. 293, 907 A.2d 276 (2006).
After Trial One, the jury returned a $550,000 verdict for my client. Judge Allen L. Schwait ordered a remittitur to $112,500 or another trial.
We rejected the remittitur and elected another trial.
Having tried the case once, I knew considerably more about it. I had seen Hopkins’s witnesses and arguments. I knew what had worked, what had not, and where I believed the proof could be improved.
I therefore sought a new scheduling order with new deadlines—the whole nine yards.
Hopkins objected.
The court did not permit the complete reopening I wanted.
The Expert Dispute
One of the additional experts I sought to use was oral surgeon Louis Belinfante, D.D.S.
The court permitted limited additional expert activity concerning subsequent treatment and the plaintiff’s condition but did not authorize wholesale reconstruction of the expert case.
That limitation produced a dispute during Dr. Belinfante’s deposition.
Defense counsel and I disagreed about the permissible scope of my questioning. He believed I was exceeding the court’s order and advised that he would not participate if I continued.
I disagreed.
My position was essentially:
I am violating your interpretation of the court’s order.
Defense counsel stopped participating. I continued the deposition.
Hopkins sought sanctions. The court restricted the expert testimony and imposed a monetary sanction associated with the dispute.
The Court of Special Appeals ultimately upheld the trial court’s exercise of discretion concerning the additional expert testimony.
The experience supplied an expensive lesson:
The right to another trial is not necessarily the right to another complete pretrial process.
What Happened Next
Trial Two ended in a hung jury.
The trial court thereafter entered judgment for Hopkins. We appealed, and the Court of Special Appeals reversed, concluding that sufficient evidence existed for the informed-consent claim to be decided by a jury.
The result was the prospect of Trial Three.
The case settled before it occurred.
Questions to Ask Immediately
When another trial becomes necessary, counsel should promptly determine:
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Why is another trial occurring?
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What issues are actually being retried?
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Does the existing scheduling order remain in effect?
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Will discovery reopen, and to what extent?
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May existing experts supplement their opinions?
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Can additional experts or fact witnesses be designated?
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May discovery address developments since Trial One?
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Which prior rulings remain applicable?
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Has an appellate decision conclusively resolved any issues?
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What precisely does the appellate mandate require?
These questions should be answered before counsel begins preparing Trial Two on the assumption that the litigation calendar has started over.
Bottom Line
There are many reasons a case may be tried again. A verdict may be excessive or inadequate. The verdict may be against the weight of the evidence. Evidentiary rulings or other events during trial may have created prejudice. Counsel, witnesses, or jurors may have engaged in conduct affecting the fairness of the proceeding. Instructions may have been erroneous. A verdict may be defective. A jury may hang. An appellate court may reverse.
But regardless of how another trial comes about:
A new trial is not necessarily a new beginning.
Discovery may remain closed. Expert deadlines may remain expired. New witnesses may be excluded. Earlier rulings may continue to matter. An appellate mandate may limit what can be litigated.
Trial One may teach counsel exactly how the case could be improved.
That does not necessarily mean the court will permit those improvements at Trial Two.
Related Maryland Cases and Authorities
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Mahler v. Johns Hopkins Hospital, Inc., 170 Md. App. 293, 907 A.2d 276 (2006) — addresses additional expert testimony in preparation for retrial and illustrates the trial court’s discretion in controlling additional preparation following an earlier trial.
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E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 718 A.2d 1129 (1998) — discusses the substantial discretion afforded Maryland trial courts in managing discovery.
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Maryland Rule 2-504 — scheduling orders and case-management deadlines.
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Maryland Rules 2-401 through 2-433 — discovery procedures and the trial court’s authority over discovery.
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Maryland Rule 2-533 — motions for new trial.
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Maryland Rule 8-604 — appellate dispositions and proceedings following remand.