POST-TRIAL PRACTICE IS LEGALESE FOR "CLEANING UP THE MESS" A COLLABORATIVE STUDY GUIDE; ONE of THREE Written by the Minnesota Third Judicial District, Wells Fargo Bank, N.A., & The United Way of Olmsted County Illustrated by Thomas P. Kelly & Legal Assistance of Olmsted County

I. POST-DECISION MOTIONS, AND THE NEED TO PRESERVE ERROR
1. 1. The phrase “post-trial motions” is often used to refer to motions for new trial, judgment as a matter of law, or amended findings. In fact, there are a number of additional motions that may be brought after a trial or other proceeding has resulted in a decision adverse to a party, including motions for relief from judgment, reconsideration, stay of enforcement, and attorney fees. Post-decision motions can be one of the most important aspects of civil litigation practice. As the following materials will demonstrate, post-decision motions can afford relief where other procedural rules cannot and are often either extremely important or essential to preservation of claims of error for appellate review. On the other hand, an ill-conceived post-decision motion, or one that is not properly or timely brought, can scuttle further proceedings, including a subsequent appeal.
    1. ADVERSE adverse. 1. Against; opposed (to). 2. Having an opposing or contrary interest, concern, or position. 3. Contrary (to) or in opposition (to). 4.HOSTILE.
    2. DAMAGE CONTROL WHAT TO DO:
    3. MOTION FOR NEW TRIAL
    4. JUDGMENT AS MATTER OF LAW
    5. AMENDED FINDINGS
    6. MOTION FOR RELIEF FROM JUDGMENT
    7. STAY OF ENFORCEMENT
    8. ATTORNEY FEES
    9. RELIEF
    10. relief. 1. A payment made by an heir of a feudal tenant to the feudal lord for the privilege of succeeding to the ancestor's tenancy. “A mesne lord could, upon the death of his tenant, accept the tenant's heir as tenant; but he was not required to do so. When he did accept his deceased tenant's heir as tenant, it was typically because the heir had paid the mesne lord a substantial sum (known as a relief) for the re-grant of the tenancy.” Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 8 (2d ed. 1984). 2. Aid or assistance given to those in need, esp., financial aid provided by the state. [Cases: Social Security and Public Welfare 4. C.J.S. Social Security and Public Welfare §§ 6, 10, 17.] 3. The redress or benefit, esp. equitable in nature (such as an injunction or specific performance), that a party asks of a court. — Also termed remedy. Cf. REMEDY.
    11. REMEDY
    12. REMEDY remedy,n. 1. The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief. — Also termed civil remedy. 2.REMEDIAL ACTION . Cf. RELIEF. — Also termed (in both senses) law of remedy. — remedy,vb. “A remedy is anything a court can do for a litigant who has been wronged or is about to be wronged. The two most common remedies are judgments that plaintiffs are entitled to collect sums of money from defendants and orders to defendants to refrain from their wrongful conduct or to undo its consequences. The court decides whether the litigant has been wronged under the substantive law; it conducts its inquiry in accordance with the procedural law. The law of remedies falls somewhere between substance and procedure, distinct from both but overlapping with both.” Douglas Laycock, Modern American Remedies 1 (3d ed. 2002).
  2. One of the primary purposes served by post-decision motions is to preserve claims of error for appellate review. They can provide an opportunity for the future appellant clearly and unequivocally to put before the trial court (and in the record) the bases for relief on appeal.
    1. PRESERVE CLAIMS OF ERROR
    2. PRESERVATION OF ERROR
    3. ERROR n. Black's Law Dictionary (8th ed. 2004), Page 1644
    4. error n. 1. An assertion or belief that does not conform to objective reality; a belief that what is false is true or that what is true is false; MISTAKE.
    5. CLEAR ERROR
    6. clear error. A trial judge's decision or action that appears to a reviewing court to have been unquestionably erroneous. Even though a clear error occurred, it may not warrant reversal. [Cases: Appeal and Error 999(1), 1008.1(5). C.J.S. Appeal and Error §§ 784, 805, 810.]
    7. CLERICAL ERROR
    8. clerical error. An error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination. Among the boundless examples of clerical errors are omitting an appendix from a document; typing an incorrect number; mistranscribing a word; and failing to log a call. A court can correct a clerical error at any time, even after judgment has been entered. See Fed. R. Civ. P. 60(a); Fed. R. Crim. P. 36. — Also termed scrivener's error; vitium clerici. See VITIUM SCRIPTORIS. [Cases: Federal Civil Procedure 2653; Judgment 306. C.J.S. Judgments §§ 280–281.]
    9. CUMULATIVE ERROR
    10. cumulative error. The prejudicial effect of two or more trial errors that may have been harmless individually. The cumulative effect of multiple harmless errors may amount to reversible error. See CUMULATIVE-ERROR ANALYSIS See REISSUABLE ERROR.
    11. 2. A mistake of law or of fact in a tribunal's judgment, opinion, or order. [Cases: Federal Civil Procedure 2653; Judgment 355–356. C.J.S. Judgments §§ 314–315.]
    12. SUBSTANTIAL ERROR
    13. substantial error. An error that affects a party's substantive rights or the outcome of the case. A substantial error may require reversal on appeal. Cf. harmless error. technical error. See harmless error.
    14. REVERSIBLE ERROR
    15. reversible error. An error that affects a party's substantive rights or the case's outcome, and thus is grounds for reversal if the party properly objected. — Also termed harmful error; prejudicial error; fatal error. [Cases: Administrative Law and Procedure 764; Appeal and Error 1025–1074; Criminal Law 1162. C.J.S. Appeal and Error §§ 825–830; Criminal Law §§ 1713–1715; Juries §§ 421–422; Justices of the Peace § 240; Public Administrative Law and Procedure § 225.]
    16. PLAIN ERROR
    17. plain error. An error that is so obvious and prejudicial that an appellate court should address it despite the parties' failure to raise a proper objection. A plain error is often said to be so obvious and substantial that failure to correct it would infringe a party's due-process rights and damage the integrity of the judicial process. See Fed. R. Evid. 103(d). — Also termed fundamental error; error apparent of record. [Cases: Appeal and Error 181; Criminal Law 1030. C.J.S. Appeal and Error §§ 202, 207; Criminal Law § 1682.]
    18. MANIFEST ERROR
    19. manifest error. An error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record. [Cases: Appeal and Error 999(1), 1008.1(7). C.J.S. Appeal and Error §§ 784, 805, 810.] See OBVIOUS ERROR.
    20. MANIFEST CONSTITUTIONAL ERROR
    21. manifest constitutional error. An error by the trial court that has an identifiably negative impact on the trial to such a degree that the constitutional rights of a party are compromised. A manifest constitutional error can be reviewed by a court of appeals even if the appellant did not object at trial.
    22. INVITED ERROR
    23. invited error. An error that a party cannot complain of on appeal because the party, through conduct, encouraged or prompted the trial court to make the erroneous ruling. [Cases: Administrative Law and Procedure 742; Appeal and Error 882; Criminal Law 1137. C.J.S. Appeal and Error §§ 745–747; Public Administrative Law and Procedure § 214.]
    24. HARMLESS ERROR
    25. harmless errors See ASSIGNMENT OF ERROR. A harmless error is not grounds for reversal. See Fed. R. Civ. P. 61; Fed. R. Crim. P. 52. — Also termed technical error; error in vacuo. Cf. substantial error. [Cases: Administrative Law and Procedure 764; Appeal and Error 1025–1074. C.J.S. Appeal and Error §§ 825–830; Juries §§ 421–422; Justices of the Peace § 240; Public Administrative Law and Procedure § 225.]
    26. The plain error standard requires that the defendant show:� (1) error; (2) that was plain;[1] and (3) that affected substantial rights.� If those three prongs are met, [this court] may correct the error only if it seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.�� Strommen , 648 N.W.2d at 686 (citations and quotations omitted).� The defendant has the burden of proof on the first two prongs, and once those are met, the state must prove that the error was not prejudicial by showing that the misconduct did not affect the defendant�s substantial rights.� Ramey, 721 N.W.2d at 301-02.[2]�
    27. (1) ERROR
    28. (2) THAT IT WAS PLAIN
    29. (3) SUBSTANTIAL RIGHTS WERE/ARE AFFECTED
    30. BURDEN OF PROOF
    31. the state must prove that the error was not prejudicial by showing that the misconduct did not affect the defendant�s substantial rights. � Ramey, 721 N.W.2d at 301-02.[2]�
    32. ADMINISTRATIVE AGENCY
    33. Administrative Cases In petitions for review from administrative orders, the standard of review is essentially the same as that for an order from a civil proceeding.53
    34. B) Adjudicatory Functions When evaluating the evidence presented at an underlying de novo hearing, the judge’s material findings of fact must be supported by competent substantial evidence and, in light of these findings, the judge must properly determine that the portion of the rule at issue is an invalid exercise of delegated legislative authority.55 1) ALJ Findings of Fact The standard of review for an administrative law judge’s findings of fact is whether they are supported by competent substantial evidence.56 2) ALJ Conclusions of Law The review standard over an agency’s interpretation of law is that of clearly erroneous, meaning that the interpretation will be upheld if the agency’s construction falls within the permissible range of interpretations.57 However, “[i]f . . . the agency’s interpretation conflicts with the plain and ordinary intent of the law, judicial deference need not be given to it.”58 If the interpretation of the law conflicts with the plain and ordinary meaning of a statute, the review is de novo.59
    35. FAIRNESS, INTEGRITY, OR PUBLIC REPUTATION OF THE JUDICIARY
    36. OFFICERS OF THE COURT ARE TO AVOID EVEN THE APPEARANCE OF IMPROPRIETY AT ALL TIMES
    37. BURDEN OF PROOF
    38. ON VICTIM
  3. The most basic rule of appellate practice is this: If it was not presented to the trial court, then you will not be able to present it to the appellate court. This generic “it” refers to most anything, including evidence, objections, legal theories, etc. The “collective it” is the appellate record. Appeals are considered only on the record before the district court, because “[i]t is unfair to reverse the district court upon evidence which it had no opportunity to consider.” Marshall Houts & Walter Rogosheske, Art of Advocacy- Appeals, § 1.05[2][a][I] (Eric J. Magnuson & Diane B. Bratvold, ed., 2005) (quoting Minnesota Fed’n of Teachers v. Randall, 891 F.2d 1354, 1359 n.9 (8th Cir. 1989)).
    1. BASES FOR RELIEF ON APPEAL
    2. CONTROL THE RECORD
    3. FORMAL OBJECTION
    4. TAKE EXCEPTION
    5. OFFER OF PROOF
    6. JUDICIAL NOTICE
    7. SWORN STATEMENTS
    8. COMPETENT FACTUAL EVIDENCE
    9. WITNESS TESTIMONY
    10. BAR ACCESS TO THE RECORD
  4. This general rule applies to more than just post-decision motions. Objections to proffered evidence must be made in a timely and specific manner, and be clearly contained in the record, in order to preserve claims of error for later appeal. See Johnson v. Southern Minn. Mach. Sales Inc., 460 N.W.2d 68, 72 (Minn. Ct. App. 1990) (failure to object to evidence at trial precludes raising the issue for the first time on appeal); " Estate of Hartz v. Nelson, 437 N.W.2d 749, 752 (Minn. Ct. App. 1989) (admissibility of evidence cannot be challenged for the first time on appeal); Minn. R. Evid. 103(a)(1) (error may not be predicated upon evidentiary ruling unless a timely and proper objection appears of record).
    1. PROSECUTOR MISCONDUCT; ATTORNEY MALPRACTICE
    2. LAWSUIT; IT'S NOT C.A.T.
    3. 6. DURESS
    5. Duress is an affirmative defense to a breach of contract enumerated in Minnesota Rules of Civil Procedure 8.03. All affirmative defenses, including duress, must be stated in a pleading. Minn. R. Civ. P. 8.03. The most common use of an affirmative defense is in a defendant’s Answer to a Complaint.
    6. A party claiming duress must prove the other party induced the contract by threat with either actual force or an unlawful threat of death or bodily harm. If an aggrieved party’s manifestation of assent is induced by an improper threat by the other party that leaves the aggrieved party no reasonable alternative, the contract is voidable by the aggrieved party. Restatement, Second of Contracts § 175. In plain terms, if one party to a contract (1) threatens the other party and (2) leaves the other party with no reasonable alternative, the contract is voidable. A voidable contract (also known as an “avoidable contract”) is a contract in which the aggrieved party has the option to either enforce the contract or cancel the contract.
    7. AGREEMENT BETWEEN PARTIES
    8. VOLUNTARY RELATIONSHIP
    9. v.
    10. INVOLUNTARY SERVITUDE
    11. FORCED CONTRACT BY AND THROUGH USE OF COERCIVE FORCE
    12. The Restatement defines an improper threat to a fair contract as “if (a) what is threatened is a crime or a tort, or the threat itself would be a crime or a tort if it resulted in obtaining property; or (b) what is threatened is a criminal prosecution; or (c) what is threatened is the use o f civil process and the threat is made in bad faith; or the threat is a breach of the duty of good faith and fair dealing under a contract with the recipient.” Restatement, Second of Contracts § 176(1). The Restatement defines an improper threat to an unfair contract as “ (a) the threatened act would harm the recipient and would not significantly benefit the party making the threat; or (b) the effectiveness of the threat in inducing the manifestation of assent is significantly increased by prior unfair dealing by the party making the threat; or (c) what is threatened is otherwise a use of power for illegitimate ends.” Restatement, Second of Contracts § 176(2). Basically, if the contract’s terms are fair, it is more difficult for the aggrieved party to prove there was an improper threat in making the contract; if the contract’s terms are intrinsically unfair, it is easier for the aggrieved party to prove there was an improper threat in forming the contract.
    13. EXTORTIONATE CREDIT TRANSACTIONS EXTORTIONATE CREDIT COLLECTION
    14. Holmberg v. Holmberg
    15. PROPERTY IS PROPER TO MY PERSON
    16. WHERE IS THE CONTRACT?
    17. Keep in mind the Restatement is helpful in defining the law, but it is not binding on Minnesota courts, rather it is a secondary source for legal scholars. The Restatement defines three categories of improper threats to an unfair contract, what is threatened is (1) crime or tort; (2) criminal prosecution; or (3) use of civil process (party threatening a lawsuit). Surprisingly, what is not included in the definition is economic duress. “Economic duress or business compulsion generally is defined as wrongful or unlawful conduct resulting in the pressure of a business necessity or financial hardship, which compels the injured party to execute an agreement against their will and to their economic detriment.” St. Louis Park Inv. Co. v. R.L. Johnson Inv. Co., Inc., 411 N.W.2d 288, 291 (Minn. App. 1987). Similar to the Restatement, Minnesota courts have refused to include in its definition of duress “economic duress,” holding “duress [is] a defense to a contract when there is coercion by means of physical force or unlawful threats , which destroys one’s free will and compels compliance with the demands of the party exerting the coercion.” Id. (emphasis added). See St. Louis Park Inv. Co., 411 N.W.2d 288, 291 (stating “[m]erely driving a hard bargain or wresting advantage of another’s financial difficulty is not duress.”)
    18. REVIEW OF ERROR http://www.xmind.net/m/ku9q/
    19. ERROR AFFECTING SUBSTANTIAL RIGHTS IS ACTIONABLE http://www.xmind.net/m/QYWP/
    20. WHERE IS THE CONTRACT? “Economic duress or business compulsion generally is defined as wrongful or unlawful conduct resulting in the pressure of a business necessity or financial hardship, which compels the injured party to execute an agreement against their will and to their economic detriment.” St. Louis Park Inv. Co. v. R.L. Johnson Inv. Co., Inc., 411 N.W.2d 288, 291 (Minn. App. 1987).
    21. ATTORNEY
    22. LEVEL OF RESPONSE; ETHICS RULES; RULES OF PROFESSIONAL RESPONSIBILITY RULES OF CIVIL PROCEDURE; GENERAL PRACTICE,
    23. Minnesota courts have further limited duress as an affirmative defense, holding “a claim of duress will not be sustained when the claimant entered into the contract with full knowledge of all the facts, advice from an attorney, and ample time for reflection.” Id. The fact that the aggrieved party had knowledge of the facts that he now alleges caused him harm, had advice from an attorney, and time to reflect on the terms of the contract will cause Minnesota courts to reject a claim of duress. All of the above mentioned elements will prove the aggrieved party in fact did have a reasonable alternative. Proof of the reasonable alternative is most evidenced by the aggrieved party’s reliance on attorney advice.
    24. BAD LAWYER
    25. USE OF THE ATTORNEY "REPRESENTATIVE" RELATIONSHIP ON BOTH SIDES TO COMPLETE THE CRIMINAL ACT OR TORT WITH THE APPEARANCE OF JUDICIAL PERMISSION - CAPACITY OF ATTORNEY BAR ASSOCIATION; JUDICIARY; ATTORNEY ATTORNEY IS LIABLE FOR ACTS OF HIS CLIENT: ATTORNEY IS LIABLE
    26. ADVICE OF COUNSEL advice of counsel. 1. The guidance given by lawyers to their clients. 2. In a malicious-prosecution lawsuit, a defense requiring both a complete presentation of facts by the defendant to his or her attorney and honest compliance with the attorney's advice. [Cases: Malicious Prosecution 21, 25(2). C.J.S. Malicious Prosecution or Wrongful Litigation §§ 25, 42, 44–47.] 3. A defense in which a party seeks to avoid liability or punishment by claiming that he or she acted reasonably and in good faith on the attorney's advice. • Such a defense usu. requires waiver of the attorney–client privilege, and the attorney cannot have knowingly participated in implementing an illegal plan. [Cases: Criminal Law 37.20. C.J.S. Criminal Law §§ 56, 94–95.] “Advice of counsel is a defense to a limited number of torts involving lack of probable cause, bad faith, or malice as an element of the cause of action. By far the most frequent cause of action against which the defense is asserted is malicious prosecution. The defense may also be asserted to avoid liability for punitive damages on the reasoning that good faith reliance on advice of counsel defeats the malice necessary to an award of punitive damages. In civil matters, the advice is typically obtained from the defendant's own attorney; when the underlying proceeding is criminal, the advice may be obtained from the district attorney's office or similar source and may take the form of action by that officer rather than advice followed by action by the defendant.” 4 Ann Taylor Schwing, California Affirmative Defenses § 41:26, at 82 (2d ed. 1996).
    27. Subtopic 1
    28. STRATEGY ISSUES
    29. LIABILITY OF FIRM FOR AGENT'S CONDUCT
  5. In certain contexts, post-decision motions are prerequisites for appellate review. In other cases, they serve as a useful second chance to make the record. In all cases, the proper role of the post-decision motion should be clearly understood and carefully executed. These materials discuss key procedural rules and case law for post-trial motions in Minnesota. There is no substitute, however, for a thorough and thoughtful review of the governing rules and case law. The discussion here is not intended to be exhaustive, although it should cover most of the significant features of post-decision motion practice.
    1. PREREQUISITE FOR APPELLATE REVIEW
    2. YOU MUST WORK IT OUT WITH YOUR BROTHER LEST YOU BE TAKEN BEFORE THE JUDGE
    3. MY BROTHER IS A VAMPIRE
    4. SECOND CHANCE TO MAKE RECORD
    5. DON'T PANIC
    6. THIS IS ONE OF THREE
PROTECTING THE RIGHT TO APPEAL: Post-Trial Motions In Minnesota
1. Eric J. Magnuson Diane B. Bratvold Jonathan P. Schmidt Briggs and Morgan, P.A. 2200 IDS Center 80 South 8th Street
  1. Affirmative Defenses (Minn. R. Civ. P. 8.03) Pleading affirmative defenses in Minnesota Copyright 2012 The Kuhn Law Firm, PLLC. 5200 Willson Road #150 Edina, MN 55424
THIS XMind map was authorized by China Brown, EXECUTIVE VICE PRESIDENT OF Lisa Stinocher O'Hanlon on 12.08.2013.
1. How to use my study maps:
2. 1
3. Head over to XMind.net.
4. 2
5. Download and install the FREE software.
6. 3
7. Now you can download any XMind map you like from my XMind account to your own computer and use it to work your own case. Save the originals in a special folder so that you can start over if you mess up, or share them with a friend or loved one.
8. 4
9. Please share my maps as much as possible. You can find them here:
10. For more AUTHORIZED mind maps visit: https://www.xmind.net/share/hennalady/
11. http://pinterest.com/thehennalady/
12. http://hennalady.minus.com/uploads
13. http://www.scribd.com/AngryJeweler
14. 5
15. Please take them to your local copy center and have large versions printed. Now you can deliver them to your local child support agency, or to low income neighborhoods, pin them to your local pub bulletin board; bus stops, the break room at work, AA clubs, your local workhouse, --> wherever!
16. 6
17. While on map pages at XMind.net you can scroll down underneath the map and see the outline with live links to other maps and relevant information. You can also view the maps full screen and save them as images. Use your screen shot program to take "pictures" of sections which can be made into photo album "flash cards".
18. Distribution copy. This document is copyright free; and is NOT FOR SALE at any cost; VOID WHERE PROHIBITED.