Oregon post-trial motions: 10 days to file, 55 days to be decided, and one motion you must join or lose

Oregon's post-trial rules run on two numbers that never change: 10 days to file, and 55 days from entry of judgment for the court to decide. Miss the first and you have no motion. Reach the second without a ruling and you have a denial, whatever the judge intended.

There is also a joinder trap in ORCP 63 C that forfeits a new trial motion outright.

The two motions

A new trial — ORCP 64 is "a re-examination of an issue of fact in the same court after judgment." It asks the court to do the trial again.

Judgment notwithstanding the verdict — ORCP 63 asks the court to enter the judgment that should have followed a directed verdict it wrongly refused. It does not re-try anything; it corrects the outcome on the evidence already in.

ORCP 63 A: where a motion for a directed verdict made at the close of all the evidence "which should have been granted has been refused" and a verdict is rendered against the applicant, the court may render judgment notwithstanding the verdict, or set aside a judgment already entered and render another.

The condition is doing the work. A JNOV motion requires a directed verdict motion made at the close of all the evidence. Without it there is nothing that "should have been granted."

ORCP 63 B lets the court hedge: where in its opinion a directed verdict motion ought to be granted, it may nevertheless, at the adverse party's request, submit the case to the jury with leave to the moving party to move for judgment if the verdict comes out otherwise, or if the jury cannot agree.

The six grounds for a new trial

ORCP 64 B: a former judgment may be set aside and a new trial granted, on the motion of the party aggrieved, for any of the following causes materially affecting the substantial rights of that party:

(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial. (2) Misconduct of the jury or prevailing party. (3) Accident or surprise which ordinary prudence could not have guarded against. (4) Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial. (5) Insufficiency of the evidence to justify the verdict or other decision, or that it is against law. (6) Error in law occurring at the trial and objected to or excepted to by the party making the application.

Six, where Washington's CR 59(a) lists nine and California's CCP 657 lists seven. Oregon has no "substantial justice has not been done" catch-all, and no separate ground for excessive or inadequate damages — those arguments have to fit inside (1) or (5).

Ground (6) requires a contemporaneous objection. An error in law not objected to at trial is not available.

Bench trials — ORCP 64 C: the same grounds apply "where applicable," and the court's powers are wider. On a new trial motion in an action tried without a jury the court "may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment."

So in a bench trial the remedy need not be a new trial at all — the court can fix the decision.

Specify the grounds, and support them

ORCP 64 D is unusually strict:

In all cases of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of new trial not so stated shall be considered or regarded by the court.

Not merely forfeited on appeal — the trial court may not consider it. A ground that is not plainly specified in the motion does not exist.

And four of the six grounds require evidence:

When the motion is made for a cause mentioned in subsections (1) through (4) of section B of this rule, it shall be upon affidavit or declaration setting forth the facts upon which the motion is based. If the cause is newly discovered evidence, the affidavits or declarations of any witness or witnesses showing what their testimony will be, shall be produced, or good reasons shown for their nonproduction.

Irregularity, misconduct, accident or surprise, and newly discovered evidence all need affidavits. And for newly discovered evidence the affidavit must come from the witness, showing what they would say — not from counsel describing it.

Grounds (5) and (6) — insufficiency of the evidence and error in law — are argued on the trial record and need no affidavit. ORCP 64 E confirms that "in the consideration of any motion for a new trial, reference may be had to any proceedings in the case prior to the verdict or other decision sought to be set aside," and allows counteraffidavits where the motion is supported by affidavits.

The clocks

ORCP 64 F(1) and ORCP 63 D(1) use identical language.

Two features to plan around.

The 10 days is extendable; the 55 days is not. "Or such further time as the court may allow" appears in the filing provision and nowhere in the 55-day provision. Compare Washington, whose CR 59(b) 10-day deadline has no extension clause at all, and California, whose CCP 660(c) sets a 75-day cliff with the same denied-by-operation-of-law consequence.

The 55 days runs from entry of judgment, not from filing the motion. File on day 10 and the court has 45 days left. File on day 3 and it has 52. Filing early is worth real time.

Notice from the clerk — ORCP 63 E: on the date an order under Rule 63 is entered, or the date the motion is deemed denied, whichever is earlier, the clerk mails notice of that date to each party's attorney of record — or to the party where there is none — and notes the mailing in the register.

That the clerk sends notice of a deemed denial tells you how the rule expects the 55 days to be used.

Join the new trial motion, or lose it

ORCP 63 C is the trap:

A motion in the alternative for a new trial may be joined with a motion for judgment notwithstanding the verdict, and unless so joined shall, in the event that a motion for judgment notwithstanding the verdict is filed, be deemed waived.

If you file a JNOV motion and do not join an alternative new trial motion with it, the new trial motion is waived. Not late — waived.

And where both are filed, the order of decision is fixed:

When both motions are filed, the motion for judgment notwithstanding the verdict shall have precedence over the motion for a new trial, and if granted the court shall, nevertheless, rule on the motion for a new trial and assign such reasons therefor as would apply had the motion for judgment notwithstanding the verdict been denied, and shall make and file an order in accordance with said ruling.

So a court that grants JNOV must still rule on the new trial motion — a conditional ruling that gives the appellate court somewhere to land if the JNOV is reversed.

If you lost the verdict to a JNOV — ORCP 63 F: "The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 64 not later than 10 days after filing of the judgment notwithstanding the verdict."

A fresh 10 days, running from the JNOV judgment.

Filing after a notice of appeal

Both rules address the overlap, in identical terms — ORCP 64 F(2) and ORCP 63 D(2).

A motion filed within the 10 days "may be filed notwithstanding that another party has filed notice of appeal," and "the trial court may decide the motion notwithstanding that notice of appeal has been filed."

Two obligations follow if you file after a notice of appeal is on file:

• serve a copy of the motion on the appellate court; and
• if the trial court decides it by order, file a copy of the order in the appellate court within seven days of the date of entry.

Any necessary modification of the appeal is made under the appellate court's own rules.

The court acting on its own

ORCP 64 G: where a new trial is granted by the court on its own initiative, "the order shall so state and shall be made within 30 days after the entry of the judgment." The order "shall contain a statement setting forth fully the grounds upon which the order was made, which statement shall be a part of the record in the case."

Thirty days on the court's own motion, against 55 for a party's motion — and a full statement of grounds is mandatory.

If you are past 10 days

ORCP 71 is the other route. Its section B(1) gives five grounds for relief from a judgment — mistake, inadvertence, surprise or excusable neglect; newly discovered evidence; fraud; a void judgment; and a judgment satisfied or no longer equitable — on a reasonable-time standard, with a one-year cap on the first three.

Newly discovered evidence appears in both, and ORCP 71 B(1)(b) says so expressly: evidence "which by due diligence could not have been discovered in time to move for a new trial under Rule 64 F." Inside the 10 days, Rule 64 is the vehicle; outside it, Rule 71.

The guide on setting aside an Oregon judgment covers ORCP 71, including its requirement that a motion on the first three grounds be accompanied by a pleading asserting a claim or defense.

How Oregon compares

A short checklist

1. File early. The 55 days runs from entry of judgment, so every day you wait is a day off the court's clock.
2. Calendar 10 days — extendable by the court, but only if you ask before it runs.
3. If you are moving for JNOV, join an alternative new trial motion. ORCP 63 C waives it otherwise.
4. Check that you moved for a directed verdict at the close of all the evidence. Without it there is no JNOV.
5. Plainly specify every ground. ORCP 64 D bars the court from considering anything else.
6. Attach affidavits for grounds (1) through (4) — and for newly discovered evidence, affidavits from the witnesses themselves.
7. Confirm you objected at trial before relying on ground (6).
8. Watch day 55. Silence is a conclusive denial, and the clerk will mail notice of it.
9. If an appeal has been filed, serve the appellate court with the motion, and file any order there within seven days.
10. If you are past 10 days, look at ORCP 71 — and remember the pleading requirement.

Where these rules live

• ORCP 60 — Motion for Directed Verdict
• ORCP 62 — Findings of Fact
• ORCP 63 — Judgment Notwithstanding the Verdict
• ORCP 64 — New Trials
• ORCP 67 — Judgments
• ORCP 68 — Pleading, Allowance, and Taxation of Attorney Fees and Costs
• ORCP 69 — Default
• ORCP 71 — Relief from Judgment or Order

Appellate deadlines are set by the Oregon Rules of Appellate Procedure, which this site doesn't cover, and a post-trial motion can affect them. This page explains what the rules say. It isn't legal advice.