Renewing After the Verdict

Renewing After the Verdict

A verdict against the party who moved for judgment as a matter of law does not necessarily end that party's challenge. Rule 50(a)(2) allows the motion at any time before the case is submitted to the jury, and it requires the motion to specify the judgment sought and the law and facts that entitle the movant to it.¹ Judges often decline to grant the motion on the spot, either because the answer is unclear or because they want to avoid a second trial if an appellate court disagrees, and they let the jury decide instead.² If the jury then rules against the movant, Rule 50(b) allows the movant to renew the request after the verdict. The court may set aside the verdict and enter judgment as a matter of law, the result that older practice called judgment notwithstanding the verdict.

The power the court uses on a renewed motion is the one Rule 50(a)(1) describes. The court may resolve the issue against the party and may grant judgment as a matter of law on any claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.³ The sufficiency question is the same after a verdict as before it. Only the posture changes: a jury has spoken, and a ruling for the movant replaces its decision with the judge's.

That change in posture raises a constitutional puzzle. The Seventh Amendment preserves the right to jury trial in civil cases, so how may a judge undo what a jury decided? The answer begins with the way Rule 50(b) keeps the legal question in reserve while the jury deliberates. Two conditions then tie the renewed motion to the earlier one: the movant must have made that motion, and the renewal may rest only on the grounds it raised. Those conditions carry forward the timing and specificity requirements of the preceding section, so a party who moved late, or in generalities, meets the consequence here. The last subsection returns to the Seventh Amendment and shows why the rule takes this shape.

Renewal and Deemed Submission

Rule 50(b) explains in its first sentence how a judge may rule on sufficiency after the jury has spoken. When the court does not grant a Rule 50(a) motion, it “is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.”⁴ The case then runs on two tracks. The jury decides the facts in the ordinary way, and the legal question the motion raised, whether the record gave a reasonable jury a legally sufficient basis to find for the other side, waits for the judge. A denial therefore postpones the legal ruling, and the renewed motion is the occasion on which the judge makes it.

Consider Penny’s suit against Desmond. The judge denies Desmond’s Rule 50(a) motion even though Penny has offered no more evidence of Desmond’s negligence, Desmond presents his own evidence, and the jury returns a verdict for Penny.⁵ Because of the deemed submission, the judge still holds the legal question. If Desmond renews the motion, the judge may set aside Penny’s verdict and enter judgment for Desmond instead.⁶ Most state courts, and federal cases before 1991, call this renewed motion a motion for judgment notwithstanding the verdict, or JNOV, an abbreviation of the Latin judgment non obstante veredicto.⁷

The renewal does not operate automatically, however. The judge need not have announced a reservation of decision, because the fiction attaches even to an express denial, but the movant must still file a motion after the verdict. A party who skips that step cannot obtain judgment on the strength of the earlier motion alone, even when the trial court expressly reserved decision.⁸ The court also typically may not act on its own initiative after a pre-verdict motion; the requirement of a motion gives the opposing party notice and a chance to request a new trial in the alternative.⁹ And a court with a proper motion before it need not grant judgment even when the case qualifies. It may order a new trial instead if it believes a new trial, rather than a final termination of the case, would better serve justice.¹⁰

The renewed motion carries its own deadline. It must be made no later than 28 days after entry of judgment or, when it addresses a jury issue the verdict did not decide, no later than 28 days after the jury was discharged.¹¹ The period runs from the judgment, so a movant who waits past it loses the motion regardless of its merit.

The late defendant and Desmond stand alike on the evidence. Only the filing date separates them, and that date decides whether the judge ever reaches the question of sufficiency.

A timely renewed motion asks the judge to reconsider the earlier denial with the hindsight of the entire trial and a less hurried look at the law.¹² The question is the one the judge faced before the verdict: did the record give a reasonable jury a legally sufficient evidentiary basis to find for the verdict winner?¹³ Because a jury found for the opponent, the motion asserts that the jury acted irrationally, in disregard of the evidence.¹⁴ The judge answers as a matter of law. The court does not weigh the evidence any more than it does on a pre-verdict motion; it asks whether any evidence supported the verdict in light of the law that governs the case.¹⁵ It looks at the whole record, including the movant's own proof. In one case the Supreme Court found no legally sufficient basis for a plaintiff's verdict, but only after considering the substantial evidence the defendant had offered.¹⁶

Courts set the threshold in two ways. Under the scintilla test, the motion fails if any evidence at all could support a verdict for the nonmovant; under the substantial-evidence test, the court grants the motion unless the record contains substantial evidence that the jury might decide for the nonmovant.¹⁷ Either way, the renewed motion differs from a motion for a new trial, on which the judge has discretion to set aside a verdict even when substantial evidence supports it.¹⁸

The renewed motion succeeds when the verdict depends on a conclusion no reasonable jury could reach. In a busy supermarket, one customer knocks over a bottle of cooking oil, and the next shopper slips on the spill within a minute and a half. A sympathetic jury might call the store unreasonable for failing to clean up and return a verdict for the shopper, yet a judge may grant the store's renewed motion because it would be unreasonable to require anyone to clean up a liquid spill in a supermarket aisle within 90 seconds.¹⁹

The spill and the roofing dispute sit on opposite sides of a line. A renewed motion that attacks the legal capacity of the proof can succeed, while one that asks the court to decide whom to believe cannot. The disappointed party may still seek a new trial, a route taken up later in this chapter.

Judges defer a first motion that looks sound because a wrong guess costs different amounts at the two stages. Reasonable judges disagree about whether a thin case is strong enough to reach a jury, so a pre-verdict grant is frequently appealed.²⁰ If the appellate court finds the evidence sufficient, it must reverse and order a new trial. No verdict exists to reinstate, so the whole trial must be repeated.²¹

Deferral changes both outcomes. Often the jury reaches the result the judge would have, which gives the judge the outcome the evidence supports and leaves no quarrel over a directed verdict.²² When the jury instead finds for the other side, the judge may grant the renewed motion, and if an appellate court disagrees, it can reverse and enter judgment on the verdict the jury returned, with no need for a new trial.²³ The saving carries a cost. More appeals may follow post-verdict rulings than pre-verdict ones, because before the verdict any disagreement between judge and jury is only speculative, and some of the trial time saved is spent on appeal.²⁴

Prior Motion Prerequisite

A renewed motion for judgment as a matter of law can only renew something that already exists. Rule 50(b) applies when the court has not granted a motion made under Rule 50(a), and the post-verdict request revives the court's handling of that earlier motion.²⁶ Rule 50(a)(2) allows the first motion at any time before the case is submitted to the jury.²⁷ Read together, the two provisions yield the prerequisite. A party who lets the jury retire without moving leaves nothing for Rule 50(b) to renew, so a motion filed after the verdict is a first request made too late. The party has waived the right to seek judgment as a matter of law, and the court should deny the motion.²⁸ The preceding subsection explained what happens to a denied motion. This one asks what happens when no motion was made, and whose motion counts.

The prerequisite rests on two supports. The first is structural. The deemed-submission rule treats the court as having sent the case to the jury subject to a later ruling on the legal questions the motion raised, so the only question held in reserve is one a motion actually put to the court.²⁹ Federal courts also defend post-verdict judgment against the Seventh Amendment's limit on reexamining jury facts by treating it as a delayed or renewed directed verdict, a device with common-law precedent, and that defense fails if no directed-verdict motion exists to delay.³⁰ For these reasons the earlier motion is an absolute prerequisite that neither a trial court nor an appellate court can dispense with.³¹

The second support is fairness to the opponent. A pre-verdict motion alerts the court and the opposing party to an apparent failure of proof while the opponent may still be able to fill the gap.³² Without the requirement, a party who spotted the gap could say nothing, accept a favorable verdict, and attack the proof only after an unfavorable one, when the opponent could no longer reopen its case. The prerequisite closes that option, and a party who skipped the step cannot cure the omission with a stronger motion later.

Does the prerequisite ask whether anyone moved, or whether this party moved? It asks about the party now seeking judgment: a party may renew its motion only if it made one before submission.³³ Suppose the defendant moves at the close of the evidence, attacking the plaintiff's proof, and the judge lets the case go to the jury. The jury finds for the defendant anyway, and the plaintiff, who never moved, asks for judgment notwithstanding the verdict. The court should deny the request. The defendant's motion targeted weaknesses in the plaintiff's case, so it gave the defendant no warning of any gap in the defense, and the plaintiff cannot borrow a motion that did the plaintiff no work.

In Trivedi v. Cooper, an employment discrimination suit, the plaintiff pressed three separate claims, for a hostile workplace, failure to promote, and retaliation, and the jury returned a $700,000 verdict for him.³⁴ The defendant sought judgment as a matter of law after the verdict. The court denied the motion on the hostile work environment claim for one reason: the defendant had never moved on that claim at any time before the case went to the jury, and a party cannot “renew” a motion it has not previously made, because there is nothing to renew.³⁵

On the retaliation and failure-to-promote claims the court reached the merits. If the jury believed Trivedi, it had evidence on which to find for him, and the defendant's denial created a swearing contest that a reasonable jury could resolve in Trivedi's favor, so the court left the verdict alone.³⁶ The case shows that preservation is judged claim by claim, because a motion that specifies the law and facts for some claims gives the opponent notice of those claims only.³⁷ It also shows what renewal does and does not accomplish. Renewal brings a party to the sufficiency question, and the sufficiency standard then decides it.

A party who missed the prerequisite can still seek a new trial. The Trivedi court explained why that request faces no comparable barrier: Rule 59 requires no earlier motion, it does not speak of a “renewed” motion for new trial, and it would make no sense to argue before the verdict that the verdict is against the weight of the evidence.³⁸ A court may order a new trial on that ground, and Rule 59(d) even authorizes the court to act on its own initiative within 28 days after entry of judgment.³⁹ Success on such a motion yields another trial before a new jury and no judgment for the movant. The verdict winner has a separate protection, taken up in the next group of subsections: if the court enters judgment against her, Rule 50(d) lets her move for a new trial on her own objections to the trial within 28 days after entry of the judgment for her opponent.⁴⁰

The prerequisite belongs to the federal rule, and some systems drop it. States are not bound by the Seventh Amendment in their own courts, and many of them allow a post-verdict motion for judgment without any earlier motion.⁴¹ A federal court applies Rule 50(b) as written, so a federal problem carries the prerequisite whatever a state's more forgiving practice would allow. The requirement also matters on appeal, because preserving the denial of judgment as a matter of law for review requires at least two motions, the pre-verdict motion and its renewal.⁴²

Same-Grounds Limit

Rule 50(b) ties the post-verdict motion to the pre-verdict one in its opening words. When the court does not grant a Rule 50(a) motion, it is considered to have submitted the action to the jury subject to the court's later deciding “the legal questions raised by the motion.”⁴⁴ That phrase sets the size of what the judge holds in reserve: only the questions the earlier motion actually put to the court stay open after the verdict. A renewed motion therefore revives a request already made, and it cannot enlarge that request. A post-trial motion for judgment can be granted only on grounds advanced in the earlier motion.⁴⁵ This limit differs from the prior-motion prerequisite in the preceding subsection, which asks whether the party made any Rule 50(a) motion at all. The same-grounds limit assumes a first motion exists and asks whether the renewed one matches it.

The limit follows from what the first motion is for. A Rule 50(a) motion made while the trial is open alerts the court and the opponent to an apparent failure of proof at a time when the opponent can still repair it, by recalling a witness or offering a missing exhibit.⁴⁶ Rule 50(a)(2) requires the motion to specify the judgment sought and the law and facts that entitle the movant to it, and the same-grounds limit gives that sentence its force after the verdict.⁴⁷ Once the jury is discharged, repair is no longer possible. If a movant could name one gap before the verdict and a different gap afterward, the opponent would learn of the second gap only when it was too late to fill it, and the warning that justifies the pre-verdict motion would be defeated. A post-verdict motion is therefore not fair game for expanding the grounds on which judgment as a matter of law is sought.⁴⁸

Does the renewed motion in Penny's suit reach everything Desmond might want to argue? It does not. Desmond makes a Rule 50(a) motion at the close of all the evidence, arguing that Penny offered no evidence that he ran a red light. The judge denies it, and the jury returns a verdict of $50,000 for Penny. Desmond then renews the motion under Rule 50(b), repeating the red-light argument and adding that Penny never offered any evidence of her damages. The court may consider the red-light ground, because the first motion raised it, but it must deny the renewed motion on the damages ground, which the first motion never mentioned.

The two grounds come out differently because only one of them gave Penny any warning. Had the first motion pointed to the missing damages proof, her lawyer could have asked to reopen and offered medical bills or testimony about her losses before the case went to the jury, and an oversight of that kind would probably have been repaired. The red-light ground raises no such unfairness, since Penny heard that argument while the trial was open and had every chance to answer it. Considering the ground still does not mean granting it. The court then asks, under the sufficiency standard from the preceding subsection, whether a reasonable jury could have found that Desmond ran the red light.

Courts do not demand mathematical precision in comparing the two motions. Some appellate courts apply Rule 50 in a liberal spirit, and a general motion seeking judgment on all counts of the complaint has been held enough to support a renewed motion that goes into greater detail about the grounds. Logan v. Burgers Ozark Country Cured Hams Inc., 263 F.3d 447, 457 (5th Cir. 2001).⁴⁹

Desmond's first motion named a single defect, which is why the damages argument was new, while the contractor's first motion named nothing in particular and so left room for later detail. That flexibility concerns how closely the wording of the renewed motion must track the first. A ground the opponent never had a chance to answer gains nothing from it. A movant who leaves the original motion general gambles that the court will read it generously, and the safer course is to list every ground in the Rule 50(a) motion.

A movant can pass the first screens and fail the third in part, as Desmond did, and the failure costs only the ground added after the verdict.

Seventh Amendment Basis

The Seventh Amendment supplies the constitutional pressure behind the form Rule 50(b) takes. It preserves the right to jury trial in suits at common law, and it adds that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”⁵⁶ A verdict states what the jury found the facts to be, so a judge who sets one aside and enters judgment for the loser seems to do exactly what that clause forbids. The preceding subsections showed that a renewed motion needs a prior motion and can rest only on the grounds that motion raised. Those conditions look arbitrary until read against this clause, because they are what allow a post-verdict judgment to count as something other than a reexamination of fact.

The distinction that makes this possible is a precarious one. Courts may use their supervisory power over questions of law to decide whether certain facts could be established on the record before them, while leaving it to the jury to decide whether those facts have been established.⁵⁷ A judge who rules on a renewed motion stays on the law side of that line only by answering a legal question, the sufficiency of the record, and not by choosing between the parties' accounts.

The Supreme Court located the line in the way the case was submitted. In Baltimore & Carolina Line, Inc. v. Redman, the Court upheld entry of judgment contrary to the verdict. It reasoned that a party who moves for judgment before the case goes to the jury, and whose motion the judge does not grant, has obtained a conditional submission: the judge may reassess the sufficiency of the evidence after the verdict.⁵⁸ The Court treated that practice as one recognized at common law, and it distinguished Slocum v. New York Life Insurance Co. on the ground that the submission there had been absolute, with no reservation of the legal question the directed-verdict motion raised.⁵⁹

The reservation changes what the later ruling is. A judge who held the legal question open does not reexamine the jury's findings; the judge answers, late, the question the earlier motion posed, whether a reasonable jury had a legally sufficient basis to find for the other side.⁶⁰ Rule 50(b) now writes that reservation into the rules as a legal fiction. Redman had relied on an actual reservation of decision, and the rule substitutes a deemed one, so a judge need not announce any reservation and the fiction attaches even when the motion was expressly denied.⁶¹ The fiction has a limit, and the same source states it: the pre-verdict motion is an absolute prerequisite, because without one there is nothing to deem reserved, and the submission is as absolute as it was in Slocum.⁶² The same-grounds limit follows by the same reasoning, since the fiction reserves only the legal questions the motion raised and cannot stretch to a ground the movant first raised after the verdict.

The justification has a second layer, because the judge's power to take a case from the jury before the verdict needs its own constitutional footing. The Supreme Court has ruled that the directed-verdict motion comports with the Seventh Amendment because, at common law, some mechanism existed by which a judge could determine that the evidence was insufficient for the jury to consider.⁶³ The Court identified comparable procedures in the demurrer to the evidence.⁶⁴ The post-verdict motion has no direct common-law analog of its own. Federal courts have upheld it solely as a delayed or renewed directed verdict, which is why it must renew a motion made before the case went to the jury.⁶⁵

Because the prior-motion rule rests on a federal constitutional clause, it travels only as far as the clause does. States are not bound by the Seventh Amendment in their own courts, so they are free to treat directed verdicts and post-verdict motions differently, and several allow a post-verdict motion for judgment even though no directed verdict was sought.⁶⁶

The sufficiency test is the same in both courts. What differs is whether a constitutional reason exists to tie the post-verdict ruling to an earlier motion, and that reason exists only where the Seventh Amendment applies. An answer set in federal court should therefore stop at the missing pre-verdict motion, however weak the plaintiff's proof was, while the same facts in a state with the looser rule move on to sufficiency.

The same line between testing sufficiency and reexamining fact governs review on appeal. An appellate court may reverse a judgment entered on the verdict and direct entry of judgment for the movant, and an appellate court that reverses a post-verdict grant may reinstate the verdict the jury returned.⁶⁷ The final section of this chapter picks up those remedies, and Neely v. Martin K. Eby Construction Co. belongs to that discussion.