Preserving Issues For Appeal

September 10, 2002 Published Work
Reprinted with permission from the Connecticut Law Tribune, September 9, 2002

If there is one thing that my trial practice instructor in law school drilled into my oversized (but largely vacuous) head, it was this: "Don't forget to move for a directed verdict at the close of the plaintiff's case, renew that motion at the close of all of the evidence, and move for judgment n.o.v. if the jury returns an adverse verdict." In federal court, under Rule 50 of the Federal Rules of Civil Procedure, these motions are now referred to as motions for judgment as a matter of law.
Many trial lawyers, fearful of waiving a possible appellate issue, make sure that their pre- and post-verdict motions include every argument they may want to make on appeal. But does Rule 50 require them to do so?

Motions under Rule 50 test whether there is a "legally sufficient evidentiary basis for a reasonable jury to find" for the non-moving party. Suppose, however, that a defendant previously moved for summary judgment, raising purely legal issues distinct from the sufficiency of the evidence supporting the plaintiff's case. If she fails to make those legal arguments again in her Rule 50 motions, has she failed to preserve them for appeal? Legally, the answer is no.

As one court has said, there is a "critical distinction between summary judgment motions raising the sufficiency of the evidence to create a fact question for the jury and those raising a question of law that the court must decide."

To preserve for appeal the arguments made in the first type of summary judgment motion, they must be renewed in a Rule 50 motion. However, the latter type of motion, if denied, provides an adequate record for raising the legal issue on appeal. Thus, a party who properly raises an issue of law before the case goes to a jury (whether by motion for summary judgment or, for that matter, motion to dismiss or even a motion in limine) need not reargue the issue in a Rule 50 motion to preserve it for appeal.

Of course, an appellant may find herself in the unfortunate position of not having raised an issue in a Rule 50 motion because she thought it to be one of law and had raised it in an earlier motion, only to find herself before an appellate court that thinks the issue was really one of fact and has been waived on appeal. Out of an abundance of caution, therefore, prudent counsel suffering from any doubt as to how an issue should be characterized would be wise to raise the issue in their Rule 50 motions, even though it has been briefed, argued and decided before. This may result in longer memorandum in support of such motions, but better safe than sorry.