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Roger
Roger, Attorney
Category: Legal
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Civil Law Florida Non final order what to do ? - I have filed

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Civil Law Florida Non final order what to do ? - I have filed a timely motion for a NewTrial and on April 5th the judge has issued an order to deny it because it fails to demonstrate legally sufficient procedural or substantive basis to support the relief requested. Meanwhile I have gathered sworn affidavits and new evidence and my question is should I file a motion to leave to amend my motion or a motion of reconsideration of the order to deny it?
Submitted: 1 year ago.
Category: Legal
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question.

IF the judge denied the motion for a new trial, then you would be left with filing an appeal or a motion for relief from the judgment.

Generally, you can't present new evidence on appeal, so the affidavits and evidence should not be accepted by an appeals court as part of any record.

Thus, the only way to present new evidence is to file a motion for relief from the judgment and have NEW EVIDENCE that was not available at trial. IF you can prove that then a motion for relief from the judgment should be filed.
Customer: replied 1 year ago.

Can I not file a motion to reconsider the order and file my new evidence and other stuff thta i did not have time to collect for the triall hearing ?

Expert:  Roger replied 1 year ago.
You could, but it would likely be futile because you can't present new evidence at a motion for a new trial. Instead, the only time you can try to present new evidence is if you file a motion for relief from the judgment and prove that this evidence was not available to you at the time of your trial.
Customer: replied 1 year ago.

You could, but it would likely be futile because you can't present new evidence at a motion for a new trial.

But then why do people ask for a new trial ? Typically, are sworn affidavits of new witnesses supported by evidences showing that the Plaintiff has lied not a good reason to ask for a new trial ?

To clarify, when I say new evidence, this is not necessarily new evidence in the sense of the motion for relief.


What if the judge grants a rehearing ? Am I not allowed to come up with my affidavits and ask for a new trial at the rehearing ?

Expert:  Roger replied 1 year ago.
A motion for a new trial points out to the court WHY its ruling was incorrect based on the testimony and evidence presented. You have to point out that the court misapplied the law to the facts of the case presented AT trial. You can't produce NEW evidence.

If you can show the court how it erred based on the law and the evidence or testimony presented, then you can file for a new trial. Otherwise, a motion for relief from the judgment OR an appeal would be the only options (but an appeal would not allow for new evidence either).
Customer: replied 1 year ago.

OK

What if the judge grants a rehearing ? Am I not allowed to come up with my affidavits and ask for a new trial at the rehearing ?

Expert:  Roger replied 1 year ago.
You can ask for a new trial, but you can't present affidavits because they aren't admissible as evidence and because they aren't part of the court record.

Your appeal would be based solely on the record. If you can state your reasons why the court ruled improperly based on the evidence presented, then you can ask for a new trial based on that evidence.
Customer: replied 1 year ago.

and because they aren't part of the court record.

What about if I file the affidavits with my motion to reconsider the order ?

Expert:  Roger replied 1 year ago.
The court should not consider the affidavits or anything not in the record. You can attach the affidavits to your motion, but the court should not consider them.
Customer: replied 1 year ago.

Ok, but i am confused,,, if I file the affidavits with the motion, they will become part of the record ?

Expert:  Roger replied 1 year ago.
N, not part of the trial record.....
Customer: replied 1 year ago.

Ok, thanks for clarifying, but does the Court of Appellate not review the whole record ?

Expert:  Roger replied 1 year ago.
The affidavits would not be part of the court record/trial record BEFORE the judgment was rendered. Thus, it would not be part of the record that the appellate court would consider on appeal.

The motion and affidavits WOULD be in the record, but the court would not consider them.
Roger, Attorney
Category: Legal
Satisfied Customers: 26960
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Roger
Roger
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BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters