Stop Treating Motions for New Trial Like a Rubber Stamp (Even if They Are)

Judges seldom grant motions for new trial. I have various theories about why. And they range from being sympathetic to the judge to utter cynicism. Sometimes, there just wasn’t any harmful error. Sometimes, the judge couldn’t fathom that he made a mistake. Sometimes, it’s just too dang expensive to try the thing twice. And some judges take a Roy Moore sort of pride in being battered by them judges in Atlanta. That said, I think you should load up and give motions for new trial everything you have. There are a few good reasons to do so.

1. Issue spotting and Issue experimentation. I view the motion for new trial as the ultimate issue spotting exercise. I like to sit down with the trial transcript and summarize it. I then work from the summary to spot as many errors as I can and put them into the amended motion for new trial. Many will be jettisoned when it comes time to draft the appeal. But I like to build the amended motion for new trial as a menu of possible appellate issues. This process serves several purposes. You learn the record. You figure out what works and what doesn’t. You force your opponent to research everything you list out and see where he is weak. Finally, if you find yourself on the habeas witness stand, the amended motion for new trial is tangible proof that you considered all of the possible viable issues during the preliminary stages of the appeal. I suggest that you place a memo to the file setting forth why you have chosen to abandon issues when you draft the brief of appellant.
2. It is an opportunity to put things in the record. In Georgia, you must raise ineffective assistance of counsel at your earliest possible opportunity. You can try to bootstrap issues not raised at trial through an ineffective assistance claim and call witnesses to proffer what a better trial would have looked like.
3. If you were the client, you wouldn’t want your lawyer to coast through any stage. You should manage your client’s expectations of the hearing, but you should still give it everything you have. I went to a high school that moved up a division when I attended. We were outmatched in every game we ever played. Everybody knew that they were going to lose when they went into those games. But everybody gave it their all. Your client deserves your all, too. If you don’t like battling long odds, the probably the whole criminal appellate process isn’t for you.
4. You just might win. It is possible that your performance at the motion for new trial hearing will scare the judge so much about a reversal or the prosecutor so much about the prospect of a new trial, that you might get a good offer or even win a new trial.

So if you have a motion for new trial coming up, come to it dressed to play. While you will likely lose, don’t treat it like the rubber stamp that it is and it might just not be a rubber stamp all the time.