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Does a judge typically grant a motion for new trial?

Fort Worth, TX |

I am not ready to fork out thousands of dollars to file for a motion for new trial if the judge won't allow it. The judge has not liked me since the beginning and I am worried that she will not grant the motion. What advice can you all give me? How likely is it that the judge will grant the motion? Thank you.

This is for a child custody/ divorce case. I was defaulted due to not making it to the court house on time for court. I tried to get trial by phone and the opposing attorney would not allow it.

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Attorney answers 5

Posted

It depends on the reason for a new trial. As a general rule, judges don't want to try the same case more than once, and if the judge made the decision, the judge is not very likely to change. But if there is a good reason, then a judge might grant it. It some cases, although the circumstances are rare, a motion for new trial is required to raise a point on appeal. You should sit down with an attorney and go over the details. Also you have a very limited time to get the motion filed, so act quickly.

This is not legal advice. You should always discuss the specifics of your issue in person with an attorney. Be aware that there are time limits on all claims that depend on the kind of claim, so do not delay in seeking an attorney.

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Posted

Please read additional comments. Thank you.

Richard Kurt Arbuckle

Richard Kurt Arbuckle

Posted

You can get a new trial on a default. There are specific requirements, but if you meet them, you must be given the new trial. I cannot list them all here. They are usually referred to as the Craddock test (not sure of the spelling). It is a case.

Posted

Why would a Motion for New Trial cost "thousands of dollars"?!? If it will cost money (other than the filing fee) then you have an attorney. Ask him/her. If you don't have an attorney consult and hire one soon as the deadline to file a MNT is 30 days from Judgment. The likelihood of prevailing on a MNT without an attorney is slim.

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Posted

Please read additional comments. Thank you.

Posted

Very common for those who do not get what they want from the legal system, to claim bias or some judicial misconduct--you represented yourself?

None on this side of the computer can do anything but speculate--we know nothing of your case, your circumstances or the reasons you think you should have a new trial. Nothing you posted indicates you have any valid reason to request one.

See a lawyer for a review of ALL your facts and circumstances to determine your best way forward.

As a general rule, judges do not include who they like and dislike from among the litigants, when deciding child custody issues--to believe otherwise would be insulting to the judge ( to say the least).

NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. DO NOT RELY ON ANY ADVICE YOU RECEIVE FROM ME OR ANY OTHER ATTORNEY IN THIS FORUM. Legal advice comes after a complete review of the facts and relevant documents and an expressed (written) agreement of representation that forms attorney-client confidentiality. Neither of these two events can occur in this forum. Mr. Rafter is licensed to practice in the Commonwealth of Virginia and the US Federal Courts in Virginia. His answers to any Avvo question are rooted in general legal principles--NOT your specific state laws. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this or any other matter.

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Posted

Please read additional comments. Thank you.

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

I am on an iPhone--for some reason Avvo does not put the additional comments on its mobile access--sorry can't see it.

Asker

Posted

Additional information This is for a child custody/ divorce case. I was defaulted due to not making it to the court house on time for court. I tried to get trial by phone and the opposing attorney would not allow it.

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

ahhh I see. Your state has very clear rules for default judgments and setting aside the judgment--I am NOT a TX attorney and would not presume to cite TX law, but I am certain you could find the appropriate statute online, likely in the TX Rules of Civil Procedure. Of course, a TX attorney could handle it easily. Act quickly, you may only have a matter of days in which to file a motion.

Posted

Whether a Judge will grant a motion for new trial depends on many things. But it is an area where spending money makes sense. It is very important to hire a lawyer for this. Pick one that has had success in filing motions for new trial and wininng on appeal. Your motion is important for the law it cites and the errors it points out and how it weaves the law into the facts of your case. Your success or failure depends upon that motion but also the affidavit and the evidence you attach. You only have thirty (30) days from the date the judgment (final order) is signed to file a motion for new trial. This deadline cannot be extended. If you are planning to hire new counsel, they need the trial transcript. If you have not requested the transcript from the court reporter, do. Also, if you lose and want to file an appeal, the motion for new trial performs the very important function of getting your favorable evidence into the record. Appeals only consider the record developed at the trial court level. Also, most complaints are deemed waived on appeal if not raised on a timely filed motion for new trial. Start calling attorneys now.

Posted

You need to retain a family law attorney who frequently practices in the court where this took place. Pronto.

This answer is based on the information provided by the questioner and is not intended to form an attorney-client relationship.

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