805.15 New trials.

(1) Motion. A party may move to set aside a verdict and for a new trial because of errors in the trial, or because the verdict is contrary to law or to the weight of evidence, or because of excessive or inadequate damages, or because of newly-discovered evidence, or in the interest of justice. Motions under this subsection may be heard as prescribed in s. 807.13. Orders granting a new trial on grounds other than in the interest of justice, need not include a finding that granting a new trial is also in the interest of justice.

(2) Order. Every order granting a new trial shall specify the grounds therefor. No order granting a new trial shall be valid or effective unless the reasons that prompted the court to make such order are set forth on the record, or in the order or in a written decision. In such order, the court may grant, deny or defer the awarding of costs.

(3) Except as provided in ss. 974.07 (10) (b) and 980.101 (2) (b), a new trial shall be ordered on the grounds of newly-discovered evidence if the court finds that:

(a) The evidence has come to the moving party's notice after trial; and

(b) The moving party's failure to discover the evidence earlier did not arise from lack of diligence in seeking to discover it; and

(c) The evidence is material and not cumulative; and

(d) The new evidence would probably change the result.

(4) Alternate motions; conditional order. If the court grants a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for new trial. If the motion for a new trial is thus conditionally granted and the judgment has been reversed on appeal, the new trial shall proceed unless the appellate court shall have otherwise ordered. In case the motion for a new trial has been conditionally denied, the appellee may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

(5) Appeal. If the court denies a motion for judgment notwithstanding the verdict, or a motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict, the party who prevailed on that motion may, as appellee, assert for the first time, grounds which entitle the party to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict or motion to change answer and render judgment in accordance with the answer so changed, or a renewed motion for directed verdict. If the appellate court reverses the judgment, nothing in this section precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

(6) Excessive or inadequate verdicts. If a trial court determines that a verdict is excessive or inadequate, not due to perversity or prejudice or as a result of error during trial (other than an error as to damages), the court shall determine the amount which as a matter of law is reasonable, and shall order a new trial on the issue of damages, unless within 10 days the party to whom the option is offered elects to accept judgment in the changed amount. If the option is not accepted, the time period for petitioning the court of appeals for leave to appeal the order for a new trial under ss. 808.03 (2) and 809.50 commences on the last day of the option period.

History: Sup. Ct. Order, 67 Wis. 2d 585, 708 (1975); 1975 c. 218; 1979 c. 110; 1983 a. 219; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 2001 a. 16.

Judicial Council Note, 1983: Sub. (6) is amended to codify the holding of Wick v. Mueller, 105 Wis. 2d 191, 313 N.W.2d 749 (1982) that orders for new trials under this subsection are not appealable as of right and that the time period for seeking leave to appeal under ss. 808.03 (2) and 809.50, stats., is computed from the last day of the option period set forth in the trial court's order. [Bill 151-S]

Judicial Council Note, 1988: Sub. (1) is amended to allow motions for new trial to be heard by telephone conference. [Re Order effective Jan. 1, 1988]

A statement that the verdict is contrary to the weight of evidence will not support an order granting a new trial in the interest of justice. DeGroff v. Schmude, 71 Wis. 2d 554, 238 N.W.2d 730 (1976).

That an expert listed in a pretrial order was not called as a witness at trial and the expert's report was admitted did not constitute grounds for granting a new trial. Karl v. Employers Insurance of Wausau, 78 Wis. 2d 284, 254 N.W.2d 255 (1977).

If the answer to one material question shows that the jury made its answer perversely, the trial court should set aside the entire verdict unless the court is satisfied that other questions were not affected by the perversity. Fouse v. Persons, 80 Wis. 2d 390, 259 N.W.2d 92 (1977).

If there is a reasonable basis for the trial court's determination under sub. (6) as to proper verdict amount, the decision will be sustained. Koele v. Radue, 81 Wis. 2d 583, 260 N.W.2d 766 (1978).

When a jury award of damages was so inadequate that it indicated prejudice, the trial court did not abuse its discretion by ordering a new trial on all issues. Larry v. Commercial Union Ins. Co. 88 Wis. 2d 728, 277 N.W.2d 821 (1979).

An order for a new trial under sub. (6) is not a final order and is not appealable as of right under s. 808.03 (1). Earl v. Marcus, 92 Wis. 2d 13, 284 N.W.2d 690 (Ct. App. 1979).

Sub. (6) establishes that one who wishes to take an appeal from the interlocutory order issued by the court. Wick v. Mueller, 105 Wis. 2d 191, 313 N.W.2d 799 (1982).

A shockingly low award of damages justified a new trial on that issue. Westfall v. Kottke, 110 Wis. 2d 86, 328 N.W.2d 481 (1983).

A court may order a retrial under sub. (6) on punitive damages alone. Badger Bearing v. Drives & Bearings, 111 Wis. 2d 659, 331 N.W.2d 847 (Ct. App. 1983).

The trial court may not grant a new trial based solely upon unobjected to instructional errors, but may use that error to grant a new trial in the interest of justice. State v. Harp, 150 Wis. 2d 861, 443 N.W.2d 38 (Ct. App. 1989).

A new trial in the interest of justice under sub. (1), when the controversy was not fully tried, is not limited to cases of evidentiary error and does not require a showing of a probable different result in the 2nd trial. State v. Harp, 161 Wis. 2d 773, 469 N.W.2d 210 (Ct. App. 1991).

The standard for granting a new trial in the interest of justice when the verdict is contrary to the great weight of the evidence is less stringent than for granting a motion challenging the sufficiency of the evidence under s. 805.14. Sievert v. American Family Mutual Insurance Co. 180 Wis. 2d 426, 509 N.W.2d 75 (Ct. App. 1993).

A codefendant's testimony that the defendant was aware of at trial, but unable to present because the codefendant refused to testify on 5th amendment grounds, was not newly discovered evidence. State v. Jackson, 188 Wis. 2d 187, 525 N.W.2d 739 (Ct. App. 1994).