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Navigating Trial Decisions Through An Appellate Framework

Trial lawyers have a hard job, and it’s easy for appellate lawyers reviewing a cold record to find fault in the decisions made by their predecessors. As others have recognized, a symbiotic relationship can occur when a trial lawyer and an appellate lawyer work collaboratively during trial to reach the best solution for the client. Boone Ford, Inc. v. IME Scheduler, Inc., issued last week, provides two helpful reminders for appellate practitioners working at the trial level.

First, the Court of Appeals reiterated that a party cannot move for judgment notwithstanding the verdict unless the party previously moved for a directed verdict. This rule might seem counterintuitive for a party who is asserting a claim; normally one thinks of a motion for directed verdict as being brought by a defending party. Nevertheless, because the third-party plaintiff in Boone Ford had not moved for directed verdict, the court concluded that any argument regarding the third-party plaintiff’s Rule 50 JNOV motion was “not preserved for appellate review.”

Of course, there are other ways to challenge a jury verdict. For example, Civil Procedure Rule 59(a)(7) allows a party to request a new trial on the ground that the verdict was not based on sufficient evidence or was contrary to law. That party is not required to have previously moved for a directed verdict or JNOV to request a new trial on that basis.

Which brings us to the second reminder. Requests for a new trial based on inconsistencies in a jury verdict must be addressed through a Rule 59 motion—they cannot be raised for the first time on appeal. In Boone Ford, the Court of Appeals explained that because the defendant never moved for a new trial on its counterclaim, the issue of a purported inconsistency in the verdict was not properly preserved for appellate review.

Error preservation in the trial tribunal is not always instinctive or the top priority for a litigator in the middle of a trial—which is why an early partnership between trial and appellate counsel can be crucial to pursuing a winning strategy on appeal.

–Kip Nelson

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