Combined Motions and Appeal

Combined Motions and Appeal

A party who loses a jury trial seldom has just one complaint. The evidence may have been too thin to support any verdict, which calls for a renewed motion for judgment as a matter of law. Or it may have been enough to reach the jury while the verdict, or the trial that produced it, was flawed, which calls for the new trial that Rule 59(a)(1) authorizes the court to grant on all or some of the issues.¹ Both motions go to the same trial judge, and the new trial motion must be filed no later than 28 days after the entry of judgment.² This section takes up two questions: how the two motions fit together, and how the case reaches the court of appeals once the judge rules.

Presenting the motions together serves the party and the court alike. The judge who saw the trial is best placed to decide both questions, and a judge who rules on them at the same time lets the court of appeals dispose of the whole case in a single appeal. If the judge decided only the first question and the court of appeals reversed, the case would return for a ruling on the second and might climb to the court of appeals a second time.

The next move after the ruling depends on what the order did to the case. An order granting a new trial sends the parties back to the courtroom, so the case is still alive, while an order denying one leaves a final judgment in place. A timely motion also postpones the time to appeal, which is why the 28-day deadline matters beyond the motion itself. On appeal, a new trial ruling receives deference for a reason that has run through this chapter: the trial judge watched the proceedings and weighed the evidence firsthand.

Moving in the Alternative

Rule 50(b) expressly allows a losing party to join a request for a new trial to a renewed motion for judgment as a matter of law, so that the new trial request operates as a fall-back.³ Counsel often have several objections to the course of a trial, and Rule 50 sets out the procedure for presenting them through combined post-trial motions.⁴ The renewed motion is essentially a delayed motion for a directed verdict, made after the jury has spoken.⁵ The new trial half rests on Rule 59(a)(1),⁶ and because it must be filed no later than 28 days after entry of judgment, a careful party files it together with the renewed motion.⁷

The reason to file both is that the two motions put different questions to the same verdict.⁸ Judgment as a matter of law asks whether the evidence was so weak that no reasonable jury could have found for the winner, and a judge who says yes takes the case from the jury and decides it. A new trial motion assumes that a reasonable jury could have returned the verdict and asks whether it is nevertheless clearly erroneous, either because it is against the weight of the evidence or because it was, or could have been, the product of a flawed trial. On that question the judge may weigh the evidence and assess credibility, so a verdict that survives the first motion can still fall to the second.⁹ In Trivedi the new trial request was framed as an even-if motion: even if the court found enough evidence to deny judgment as a matter of law, it should still order a new trial because the verdict shocked the court’s conscience.¹⁰ A loser who filed only the first motion would give up that fall-back. The sequence that preserves the most options in a jury case is to move for judgment as a matter of law before the verdict and, after an adverse verdict, to renew the motion and move for a new trial in the alternative. In a nonjury case, the loser moves for a new trial.¹¹

Combining the motions poses a puzzle once the judge grants judgment as a matter of law. The new trial request then seems to have nothing left to do, because the movant has already won everything a new trial could offer. Yet the court of appeals may reverse the judgment, and the movant may still deserve a new trial, because the new trial motion asks a different question. Without more, the appellate court would have to remand so that the trial judge, who heard all the evidence, could rule belatedly on the new trial.¹² That detour is costly, because the court of appeals could not address both issues at once, and a verdict winner may not immediately appeal an order granting a new trial.¹³

Rule 50(c) closes the gap by requiring a judge who grants the renewed motion to rule conditionally on any new trial motion, deciding whether a new trial should be granted if the judgment is later vacated or reversed.¹⁴ If the judgment is reversed, the new trial proceeds unless the court of appeals orders otherwise, and if the new trial was conditionally denied, the movant may assert error in that denial on appeal.¹⁵ A new trial granted only as an alternative to judgment as a matter of law also leaves the case appealable at once, so both rulings go up together.¹⁶

A contract dispute between Carroll and Alcott shows the procedure at work. Carroll won a jury verdict after the judge denied Alcott’s motion for judgment as a matter of law at the close of the evidence. Alcott renewed the motion and asked, in the alternative, for a new trial on the ground that the verdict was against the weight of the evidence. The judge granted judgment as a matter of law and, as Rule 50(c)(1) requires, also ruled conditionally on the new trial motion by granting it.¹⁷ If the court of appeals holds the evidence sufficient and reverses, the conditional order tells it what comes next: it generally remands for the new trial the judge ordered, though it is not bound by the judge’s view, and if it decides the new trial was granted in error, it may reinstate the original judgment on Carroll’s verdict.¹⁸ One appeal thus disposes of every ruling, with the trial judge’s view of the trial before the court.¹⁹

The same logic governs when the appellate court agrees with the trial judge. If it holds that judgment as a matter of law was proper, the conditional ruling on the new trial never takes effect, whether the judge granted or denied it, because the ruling applied only if the judgment was later vacated or reversed.²⁰ A conditional denial matters in the opposite situation. Pasterini won a $125,000 verdict. Duke renewed his motion for judgment as a matter of law and moved in the alternative for a new trial because material evidence had been excluded, and the judge granted judgment for Duke while conditionally denying the new trial. If the court of appeals reverses the judgment and also finds the exclusion erroneous, Duke may assert error in the conditional denial on appeal, and the case returns for a new trial at which the excluded evidence must be admitted.²¹

The verdict winner faces a mirror-image problem, because a winner has no reason to complain about trial errors that did not prevent the win. Milne won a jury verdict against Potter even though some of his evidence had been excluded, and he presumably has no interest in trying the case again just to perfect the process.²² If the judge then grants Potter’s renewed motion and takes the verdict away, the exclusion suddenly matters, because Milne can argue that with his evidence he would have made a submissible case. Rule 50(d) answers with a delayed motion: Milne may move for a new trial within 28 days after entry of the judgment for Potter, so he need not raise the objection until the verdict in his favor is lost.²³ When the judge instead denies judgment as a matter of law, the winner keeps the verdict and has nothing to ask for. If the loser then appeals and the appellate court finds the denial erroneous, the winner may, as appellee, assert grounds entitling it to a new trial, and the court of appeals then chooses between ordering a new trial and directing entry of judgment.²⁴ Sometimes the appellate court sends the question back, because a court that finds the evidence legally thin often cannot tell whether other evidence might have let the winner keep the verdict, and the trial judge is usually better placed to decide whether a new trial is warranted.²⁵

Skipping the post-verdict motion carries a steep price. In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., the losing party filed a Rule 50(a) motion before the verdict but never filed a Rule 50(b) motion afterward and never requested a new trial under Rule 59. The court of appeals found the evidence insufficient and remanded for a new trial, and the Supreme Court reversed, holding that failure to comply with Rule 50(b) forecloses the challenge to the sufficiency of the evidence.²⁶ The holding extends to a new trial the older rule that, without a post-verdict motion, an appellate court cannot direct judgment contrary to the one the trial court let stand. It also applies the general rule that, absent exceptional circumstances, a party may not raise on appeal an error it never asked the trial court to correct, so the trial judge who watched the evidence gets the first chance to decide whether it sufficed.²⁷ A renewed motion, by its nature, presupposes an earlier one, so a party that never moved before the verdict has nothing to renew.²⁸

The first appeal fails at the threshold: nothing was renewed after the verdict, so the sufficiency challenge is foreclosed whether the remedy sought is judgment or a new trial.²⁹ The second appeal goes forward, because the objection made at trial preserved the instruction error and no later new trial motion is required.³⁰ The outcomes differ because the complaints differ. Sufficiency is the question that judgment as a matter of law tests, while a misstated instruction is a flaw in the trial process, and the objection had already put that flaw before the trial judge.³¹

Appeal and Standard of Review

Rule 59(a)(1) lets the court grant a new trial on all or some of the issues, and what the parties can do next depends on whether the court granted one or refused.³⁴ Because federal appeals ordinarily lie only from final decisions of the district courts, the question after either ruling is whether it ends the case in the trial court.³⁵ A denial does end it: the verdict stands, a final judgment is in place, and the loser may appeal at once. A grant does not, because it orders a second trial and the case goes on, so the grant is reviewed only after the retrial.³⁶ Lawyers call such a grant interlocutory, meaning a ruling made in the middle of a case.

The final-judgment rule exists to keep one dispute from reaching the court of appeals in installments, and an immediate appeal from a grant would invite exactly that, since the second trial might satisfy the party who objected to the grant. A verdict winner whose verdict is set aside therefore cannot appeal at once, because the order is not a “final decision.”³⁷ Consider Okafor, whose verdict is set aside because the judge decided that an instruction misstated the law. Okafor believes the instruction was proper and wants the court of appeals to say so before a second trial begins, but the order is not final, so the retrial comes first.³⁸ A win at the second trial leaves nothing to appeal. A loss produces a final judgment for the other side, and Okafor may then challenge the grant: if the court of appeals finds the instruction proper, it can reinstate the original verdict, and if it finds error, it upholds the grant and affirms the second judgment.

Reinstatement is a real result and not only a classroom possibility. In Peterson v. Wilson the Fifth Circuit held that the trial judge had improperly granted a new trial for juror misconduct and, after reading the record, concluded that the original verdict should stand.³⁹ The parties had already borne the time and cost of a second trial, which is the price of postponing review until the case is over. Some state systems avoid that waste by allowing an immediate appeal from a grant, but the federal courts do not.⁴⁰ The familiar exception appears in the preceding subsection: when a judge grants judgment as a matter of law and conditionally grants a new trial in the alternative, a final judgment exists, so both rulings may be appealed together.⁴¹

A second rule governs when the appeal must be filed. A notice of appeal in a civil case is ordinarily due within 30 days after entry of judgment, or 60 days when the United States is a party, but a timely Rule 59 motion suspends the finality of the judgment, and the time to appeal then runs from the order granting or denying the motion.⁴² The mechanism is simple. A judgment the trial judge may still modify or undo is an unstable thing to appeal from, and without suspension a party would have to file a protective appeal while the motion was pending. Tolliver’s Rule 59 motion shows the effect: it suspended the finality of the judgment, and she could not appeal until the court decided her new trial motion.⁴³ The suspension depends on the motion’s own timeliness, because a posttrial motion must itself be timely to extend the time for appeal, and a new trial motion must be filed no later than 28 days after entry of judgment.⁴⁴

The first notice is on time. The June 15 motion was timely and suspended the finality of the judgment, so the appeal period ran from the July 20 order. The second notice is late. The July 10 motion came after the 28-day period and suspended nothing, so the 30 days ran out on July 1.

Once the case reaches the court of appeals, a ruling on a new trial motion receives deference: the denial of a Rule 59 motion is reviewed only for abuse of discretion.⁴⁵ The reason lies in vantage point. A new trial motion assumes the evidence was sufficient and asks only whether the verdict is nevertheless clearly erroneous, either because it is against the weight of the evidence or because the trial process was flawed, and the judge deciding it may weigh the evidence and assess credibility.⁴⁶ That judge watched the whole trial and is best placed to decide, from the totality of the record, whether something so prejudicial or so inconsistent with the interests of justice occurred that a new trial is needed, while the appellate judges have only the cold written record.⁴⁷ Improper remarks by counsel illustrate the point. The trial judge saw how the remarks were delivered, how the jury reacted, and whether the judge’s efforts to control the damage worked, so the denial of a new trial based on improper statements is reversible only for abuse of discretion.⁴⁸ The deference reaches even legal questions in the trial process: an appellate court decides de novo whether a jury instruction correctly stated the law, but it still defers to the trial judge’s view of how much harm the error caused.⁴⁹ Appellate courts give great deference to the trial court’s decision whether it grants a new trial or denies one,⁵⁰ though deference does not make review empty, as Peterson shows.

Students often ask whether a party who objected at trial must also file a new trial motion to raise the point on appeal. The answer turns on whether the post-verdict motion is the party’s first chance to put the complaint before the trial judge. Errors that occurred before judgment and that the party raised in another way, such as erroneous admission of evidence, improper statements by counsel, or a faulty jury charge, are preserved by the objection at trial, and no new trial motion is required.⁵¹ Complaints aimed at the verdict itself are different, because only a post-verdict motion gives the trial judge a chance to correct them. That covers challenges to the sufficiency of the evidence, which a renewed motion for judgment as a matter of law presents, and challenges to the excessiveness of the verdict, which a new trial motion presents.⁵² The two travel through different motions because the tests differ: judgment as a matter of law tests sufficiency without weighing the evidence, while a new trial motion assumes the evidence was sufficient and asks whether the verdict is clearly erroneous.⁵³ Underneath all of this lies the general rule that a party may not raise on appeal an error it never asked the trial court to correct.⁵⁴ That is why the safe course in a jury case is to move for judgment as a matter of law before the verdict and, after an adverse verdict, to renew the motion and move for a new trial in the alternative.⁵⁵

The instruction challenge is preserved by the objection, so the court of appeals can reach it. The excessiveness challenge was never presented to the trial judge, who was best placed to evaluate it, so the defendant has forfeited it.