55. How is the court likely to rule on the motion for a new trial?

A trial court in both state and federal courts generally has wide discretion to grant a motion for a new trial because such a motion runs less of a risk of abridging the Seventh Amendment than a directed verdict, or a judgment notwithstanding the verdict.

The Federal Rules of Civil Procedure (FRCP) 59 sets different standards for granting new trials in jury and non-jury cases. When there has been a jury trial, the judge may order a new trial for any reason for which a new trial has been granted in an action at law in federal court. When an action is tried without a jury, a new trial may be granted for any of the reasons an equity court would have granted a rehearing.

A new trial may not be granted for harmless error. A harmless error is one that does not affect the substantial rights of the party seeking the new trial. For most types of error at the trial court level, the party injured by the error must make a timely objection in order to preserve the right to cite that error on appeal as a ground for a new trial.

The trial judge may order a new trial because of what the judge has concluded to be her own errors committed during the trial. This is especially likely to occur in jury trials, where the judge believes that her errors have tainted the jury's verdict.

If a party, witness, or counsel conducts herself improperly to the extent that there is a substantial risk that an unfair verdict has resulted, the trial judge may grant a new trial. In rare circumstances, a new trial may be granted for jury misconduct.

D is correct. The court should grant the motion for a new trial because it is likely that the jury would be biased by the repetitive derogatory comments from the engineer's attorney, and manifest injustice would result from letting its future verdict stand. This is a well-established ground for a new trial.

While parties should be careful to preserve an issue by making a timely objection, FRCP 46 abandons the common law requirement of a «formal exception to a ruling or order» and further states that «[f]ailing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made» despite the requirement that a party must state its objection «along with the grounds for the request or objection.» So, the fact that the company's attorney had not objected to every instance of prejudicial conduct does not prevent the court from granting a new trial.

A is incorrect. The court cannot rely on an assumption that the jury would not be influenced by the remarks repeatedly made by the engineer's attorney, especially when a motion for a new trial has been raised on the exact issue.

B is incorrect. The company's counsel's failure to object to some of the irrelevant and offensive remarks does not prevent the court from awarding a new trial where it was likely that the jury was biased by the inflammatory words, and manifest injustice would result from letting its future verdict stand. As explained above, FRCP 46 does not require a party to make a formal exception to the ruling in order to preserve it for appeal.

C is incorrect. Where improper remarks are not single, isolated occurrences but are instead repeated reminders to the jury, the court cannot and will not count on instructions to the jury to disregard such statements, nor will it count on instructions to the jury that such remarks are not to be considered evidence.