Concept
Appellate Review
Motions for judgments as a matter of law (directed verdicts and judgments notwithstanding the verdict)
Appellate Review
A jury trial ends in a verdict, the loser appeals, and the court of appeals faces three questions in order. Did the appellant preserve the sufficiency argument? How closely may the court examine the trial judge’s ruling? And if the ruling was wrong, what may the court order? Each answer depends on the one before it, so the three subsections below take the questions in that sequence.
Rule 50(a) supplies the vocabulary for all three. Once a party has been fully heard on an issue and a reasonable jury would lack a legally sufficient evidentiary basis to find for it, the court may, but need not, resolve the issue against that party and 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.1 The motion may be made at any time before the case is submitted to the jury, and it must specify the judgment sought and the law and facts that entitle the movant to it.2 An appeal from a Rule 50 ruling therefore asks whether the trial judge answered a legal question correctly, and whether the court of appeals may reach that question depends on what the appellant did at trial.
Preserving the Challenge
Two filings carry a sufficiency challenge to the court of appeals. The first is the Rule 50(a) motion, made before the case goes to the jury.3 The second is the renewed motion under Rule 50(b), filed no later than 28 days after entry of judgment.4 Rule 50 requires both, and a party that makes only the first has not preserved the denial of judgment as a matter of law for appeal.5
Desmond’s position looks strong because he asked for judgment and the judge refused, but that refusal is only the first of the two requests the rule requires.6 The pre-verdict motion has its own work to do. It alerts the court and the opposing party to an apparent failure of proof and lets the non-moving party fill the evidentiary gap while the record is still open, a purpose the Court recognized in Cone v. West Virginia Pulp & Paper Co.7 For that reason, a post-verdict motion may not expand the grounds on which judgment is sought.8 The renewed motion does different work. As the earlier discussion of deemed submission explained, a judge who denies the pre-verdict motion treats the case as submitted to the jury subject to deciding the legal questions later, and the renewal is how the movant calls for that decision.
The two motions need not match perfectly. Rule 50 does not require mathematical precision, and some appellate courts apply it in such a “liberal spirit” that a general, all-encompassing pre-verdict motion has been held enough to support a renewed motion arguing the grounds in greater detail.9 A missing renewal is a different matter. In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., the Supreme Court held that the courts of appeals are “without power” to grant a new trial based on insufficient evidence in the absence of a proper Rule 50 or Rule 59 motion, and it is highly doubtful after that decision that even plain-error review of an unpreserved sufficiency challenge remains available.10 The limit goes to the appellate court’s own authority, so a panel that finds the evidence thin cannot reach for a gentler remedy to get around it. The usual label for the result is waiver of the sufficiency argument.11
Skipping the first step leaves nothing to renew, skipping the second forfeits review of sufficiency, and skipping the third leaves the movant with a single remedy. In a nonjury case, the rule of thumb for a party that loses is to move for a new trial.15
Standard of Review
A court of appeals reviews a ruling on judgment as a matter of law de novo: it decides the legal question for itself, owes the trial judge’s conclusion no deference, and may still be persuaded by it.17 Two reasons support that standard. Appellate courts hold a comparative advantage in deciding questions of law, and independent review promotes uniformity in the law.18 More to the point, the sufficiency test leaves the trial judge nothing to be deferred to. The judge deciding the motion may not make credibility determinations or weigh the evidence, so no firsthand impression of the witnesses informs the ruling.19
The appellate court asks the question the trial court asked on the original and renewed motions: could a reasonable jury have returned the verdict?20 It answers by drawing every reasonable inference in favor of the non-moving party and by neither weighing the evidence nor resolving credibility, because, as the Supreme Court has put it, “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”21 De novo review therefore settles who answers the legal question, while the reading of the record stays deferential to the jury. Courts treat the inquiry as one of law, which is also why it does not offend the Seventh Amendment: the question is whether the evidence was a legally sufficient evidentiary basis for a reasonable jury to have found for that party.22
The verdict winner’s floor is substantial evidence. Most courts of appeals have rejected the idea that a mere scintilla sustains a verdict.23 The Supreme Court rejected the scintilla rule in a case where the plaintiff’s theory rested on a fact inferred from one witness’s testimony, unimpeached eyewitnesses denied that the event occurred, and the plaintiff offered no direct rebuttal. With no conflicting evidence to send to the jury, the directed verdict for the defendant was restored.24
The standard of review follows the trial judge’s role, as the Sixth Circuit’s decision in Hersch shows. One appeal there presented a jury claim and a nonjury claim arising from the same crash. On the jury claim, the governing products-liability law required the plaintiffs to show that the alleged defects probably caused the crash, their evidence showed only a possibility, and the court of appeals upheld the directed verdict.25 On the nonjury claim, the trial judge, as fact-finder, had been impressed by the air-traffic controller’s testimony and had rejected the conflicting expert testimony, and the court of appeals held that this was not clearly erroneous, so the dismissal stood.26 Where the judge could not weigh the evidence, the appellate court reviews the legal ruling for itself, and where the judge could weigh it, the appellate court defers to what the judge found.
The ground for a new trial motion sorts those rulings the same way. Questions about the admission or exclusion of evidence or about jury instructions often present issues of law, which a court of appeals reviews de novo because appellate judges specialize in legal questions.27 Even then, the appellate court defers to the trial court’s judgment of how much harm the error caused.28 Whether a verdict goes against the great weight of the evidence is a different kind of decision. It requires a balancing of evidence, usually including live testimony that only the trial judge fully observed, so appellate judges rarely second-guess the on-the-spot judgment that a new trial is warranted.29 Early federal cases treated a new trial grant on this ground as unreviewable, but the trend runs toward review for abuse of discretion, applied gingerly, a trend the Supreme Court approved in Gasperini v. Center for Humanities, Inc.30 The safest generalization is that the trial court has very broad discretion over new trial decisions and that appellate courts defer a great deal to its exercise.31
The two rulings drew different review because they decided different questions. The ruling on judgment as a matter of law asked whether the proof could support a verdict, which depends on what the record contains and calls for no judgment about any witness, so the appellate court is as well placed as the trial judge to answer it. The weight-of-the-evidence ruling asked whether the verdict should stand in light of the judge’s impression of the witnesses, an impression the appellate court never had. When a problem asks which standard governs, ask what question the ruling decided. An answer that has the appellate court reweighing credibility on a Rule 50 appeal misapplies the standard, and so does an answer that treats every post-trial ruling as discretionary without checking the ground on which it rested.
Appellate Remedies
Three facts determine what a court of appeals may order once it finds error: whether the appellant renewed the motion after the verdict, whether the evidence was legally sufficient, and whether the jury ever returned a verdict. Preservation comes first, because it decides whether the court has any remedy to give. A party that stopped at the Rule 50(a) motion has not preserved the denial of judgment for appeal, and the court of appeals is without power to grant that party a new trial for insufficient evidence.33
When the appellant did renew and the court of appeals holds the evidence legally insufficient, the court may order judgment for the appellant. The order does not offend the Seventh Amendment, because an appellate court that holds the proof insufficient finds no fact of its own. It decides that the record could not support the finding the law requires, which is the same question of law the trial judge faced on the motion.34 In Weisgram v. Marley Co., the court of appeals held the plaintiff’s expert testimony inadmissible, found the remaining evidence too thin to support the verdict, and ordered judgment for the defendant. Judgment, not retrial, fits that situation because the plaintiff had a full and fair chance to present the case, and the pre-verdict motion had given the plaintiff notice of the gap and a chance to fill it.35 A new trial would give a second chance to cure a shortfall the first trial had already exposed.
When the court of appeals instead finds the evidence sufficient, the result depends on whether the trial court acted before or after the verdict.
The difference lies in what the jury has already decided. When the court of appeals reverses a pre-verdict grant, the jury never answered the factual questions, and the court can only order a new trial, which repeats the entire trial at great cost.36 When it reverses a post-verdict grant, it has determined that the jury’s verdict was reasonable, and the verdict is still in the record to be restored.37 Judges know the difference, and they prefer to avoid a time-consuming and expensive retrial, so they grant Rule 50(a) motions only when the argument is strong and the likelihood of reversal is low.38
A conditional new trial ruling lets the court of appeals settle both questions in one appeal. When a party moves for judgment and for a new trial together, the trial judge must rule on the judgment motion and also make a conditional ruling on the alternative new trial motion.39 If the court of appeals reverses the judgment, it reviews that conditional ruling for abuse of discretion.40 If the ruling stands, the parties retry the case, and if it does not, the verdict is reinstated.