Usually not. In federal court, a conditional verdict reduction generally is not immediately appealable while the plaintiff must still choose between the reduced award and a new damages trial. This procedure is called remittitur. Appeal rights depend on the court system, the governing appellate rule, and whether the plaintiff accepts or rejects the reduction.
Table of Contents
- Is the judge's ruling final or conditional?
- What happens if the plaintiff rejects the reduction?
- Does accepting the reduced award preserve an appeal?
- Could state court produce a different answer?
Is the judge's ruling final or conditional?
Start with the order's operative language. An order offering a lower award "or a new trial" is different from a final judgment fixing the parties' rights. Federal appeals generally require a "final decision" under 28 U.S.C. § 1291, published by the U.S.
House Office of the Law Revision Counsel. A conditional remittitur usually does not meet that requirement because the plaintiff's election remains unresolved. A traditional federal remittitur gives the verdict winner two choices: accept the reduced damages or undergo a new damages trial. According to the U.S. Court of Appeals for the Eleventh Circuit, the judge cannot use remittitur simply to impose a lower amount without the plaintiff's consent.
What happens if the plaintiff rejects the reduction?
Rejecting remittitur usually leads to a new trial on damages. The order granting that new trial is interlocutory, meaning it occurs before the case reaches an appealable final judgment. Suppose a jury awards $1 million and the judge offers the plaintiff $600,000 or a new damages trial.
If the plaintiff rejects $600,000, the usual federal path is to retry damages and challenge the remittitur after final judgment. Rejection may preserve the plaintiff's ability to contest the reduction later, but it also exposes the plaintiff to the uncertainty and expense of another trial. It does not ordinarily create an immediate appeal.
Does accepting the reduced award preserve an appeal?
Acceptance can produce a final judgment, but it normally ends the federal plaintiff's ability to seek restoration of the original verdict. Other properly appealable issues may remain, but the accepted remittitur itself generally does not. The Supreme Court held in Donovan v.
Penn Shipping that accepting a remittitur "under protest" does not preserve a federal appeal challenging the reduction. An express reservation of appellate rights does not change that result. The practical distinction matters: a judgment can be final and appealable while a particular issue remains unavailable for review. Plaintiffs should therefore avoid assuming that writing "under protest" beside an acceptance preserves the original verdict.
Could state court produce a different answer?
Yes. State statutes and appellate rules can depart from the federal approach, so federal practice should not be treated as a nationwide rule.
Tennessee provides a clear example. As described by the Tennessee Court of Appeals, a verdict winner may accept a trial judge's remittitur under protest and appeal the reduction. Before making an election, identify: The acceptance document and the court's order should be reviewed before the plaintiff elects a reduced award, because that election may eliminate the federal challenge it was meant to preserve.
- Whether the case is in federal or state court.
- Whether the order is conditional or accompanied by final judgment.
- Whether the plaintiff has accepted, rejected, or not yet answered the remittitur.
- Whether the intended appeal challenges the reduction itself or a separate issue.
- Which appellate statute or court rule governs the case.