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Sets for the procedural requirements for challenign the sufficient of the evidence in a civil jury
trial and establishes two stages for such cahallegnes - prior to the submission of the case to the
jruy, and after the verdict and entry of judgement
 DV (challenging sufficiency of evidence prior to submission to the jruy)
 JNOV (challenging sufficiency of evidence after jury verdict)
Conditional new trial
  - 28 days to move for NT by party against whom JMOL was entered (DSC)
! -- Appelate court may remand for a new trial OR render the final decision (enter
judgement)

Purposes
@p Speeds litigation
@p Avoid unnecessary retrials
@p ºsolate issues (partial JMOL)
@p Controlling irrational jury pehavior

Standard
@p Ñlegal Sufficiency´ of the evidence ± but a difficult standard
›p Now, the as a whole: Viewing the evidence (and construing inferences/facts) in
light most favorable to non-moving party, but may consider Ñmust believe
evidence´ presente by moving party (uncontradicted, unimpleached«eg. the
perfect witness) ± grant JMOL if Ñno reasonable jury´
rp ‰ives judges more Ñroom´
rp Perfect witness: unimpeached, uncontradicted, disinterested
@p Äut the mere emplyement by a party is insufficient to impeach
testimony (Chamberlain)
@p Same for DV and JNOV, and Summary Judgment
›p Contrast DV/ SJ  
rp The denial of DV `
totally discretionary (unlike SJ)
rp åhile the stanards for DV and JNOV are the same, courts often prefer to
let it go to trial (where they might grant a DV based on the same
evidence) because it allows parties to fully present case, cross-examine,
etc. particularly when main evidence is witness testimony (thus, in
practical application a DV standard is slightly Ê ` Ê

to meet)
rp Judge gets to ÊÊ
the witnesses
@p Also, jury instructions (by not giving instructions to the jury, making a JMOL)
›p Arguments r.e. DV motions and those r.e. jury instructions often overlap ± thus,
a judge might grant some leeway in terms of 50A/Ä motions if timely-made
arguments r.e. jury instructions were sufficient to pu the toher party Ñon notice´
@p credibility determination not allowed (contrast to 59 NT)
›p because witness demeanor, etc. can¶t be preserved on the trial record, reviewed
on appeal ± would give judge too much power
@p when non-movant hasn¶t met Ä


(proof is evidence for the jury)
›p thus, judges rarely grant JMOL for Plaintiffs (because they bear the burden of
proof)
Partial JMOL
@p JMOL may be appropriate as so as a party has completed a presentation on a fact
essential to that party¶s case ± thus, don¶t have to always wait until close of the other
party¶s evidence. Examples:
›p may move for JMOL after P has presented evidence on liability but Ê
Ê
they
present evidence on damages (efficiency ± if JMOL is appropriate, the rest is
surplusage. Also, don¶t want to Ñprejudice´ with irrelevant evidence)
›p A judge may re-order a trial (E‰ require presentation of affirmitive defense first,
if it might be decisive)
@p Note   JMOL can 
Ê

 Ê


` `` 
New trial for damages.

"ºn ‰eneral
@p party can make (and judge can rule on) DV motion at any time before sent to jury, after
non-moving party been fully heard on issue
›p åhen a party makes a 50(A) motion after the close of non-moving paryt¶s
evience (before presenting their own case), they are challenging the sufficiency
of the evidence
›p Äut when the motion is made after the close of all evidence, thye   be making
it on the grounds that hteir (uncontested, unimpeached/refuted) evidence was so
strong that it rendered JMOL appropriate ± Ñno reasonable jury could find«´
(though can be on ``Ê
still«)
@p must state your Ñreasons´ ± so when you make a 50A motion, you are putting the
opposing party 
 `Ê r.e insufficient evidence on a certain element of their claim, thus
allowing them to rememdy this defect if they can (judge can/will Ñre-open´ if necessary,
if this is after the close of evidence)

JNOV (50Ä)
@p Must have made a 50A motion 

Ê
Ê

 to make a 50Ä motion
›p failure to renew 50A as a 50Ä precludes you from seeking 50A ± based relief on
appeal too. You can¶t seek appellate relief under 50A because that is a Ñjudge¶s
discretion´ ± he doesn¶t have to grant it even if the standards are met (Unitherm)
@p denying 50A motion, judge automatically reserves the right to grant JNOV (Redman)
›p 28 days after entry of judgment to file a renewal via a 50Ä motion (as for NT)
@p reason for renewal requirement
›p oth Am/CL precedent (not a req in all state cts)
›p accountability: SC says judge can¶t do it (while rule says ct.   but we don¶t
want judge taking on this responsibilyt
›p notice: protecting non- moving party, preventing surprise by alerting to
insufficiency of evidence
rp Coopert¶s criticism - The opposing party has usually ahd plenty of
notices of Ñinsfufficiency´ throughout the trial, ºnterferes w. adversarial
system?
›p Might grant the motion! ºf affirmed on appeal by COA, case is over!
rp Avoids hassle of having to have a new trial whne a DV was erroneously
denied
@p its ok to make a DV motion at the close of opposing party¶s evidence, then again at the
close of all evidence, and then
 ` as a JNOV after an unfavorable verdict

JNOV v. DV
@p Advantages of JNOV:
 ›p avoiding an unnecessary decision ± jury might get it right
›p Judge can carefully consider whether JMOL is appropriate ±
rp Jury isn¶t µwaiting around¶
rp Jury¶s answe might influene the judge, (even though it's not really
supposed) and make him really consider the rationale behind a contrary
judgment
›p for appeal ± won¶t need a new trial if Judge¶s judgement is overturned
@p Advantages of DV
›p Efficiency: if the case is very clear, save hassle of instructions, lawyer
arguments, time for deliberation, etc. (note that the amount of saving can depend
on how complex the ccase is)

Conditional new trial (50C)

@p when you make a JNOV motion after the verdict, can join with 59 motion for new trial
(discretionary second chance)
›p Most common is the losing party makes a motion for JNOV and conditional new
trial if JNOV is denied (all still at TC level)
›p note that this is a discretionary option, rarely given, and that there are different
standards for JNOV/NT
›p 59 motion is usually made just in case (or to help with settling), but might not
want to if : don¶t think you can do better, its too expensive, the adversary
Ñlearned¶ something helpful during trial
@p Judge granting/denying 50Ä motion, must make conditional ruling on 59 new trial
motion
›p Purpose ± so that COA can address both, Ñfresh in the judge¶s mind´
›p awkward ± must predict that he will be resversed and a

›p a judge might want to deny a new trial: doesn¶t want to deal with it/risk it again
(e.g a v. sympathetic party), awkward (JMOL has a standard of certainty«but
judge has to predict reversal)
›p if refersing for Ñdifferent reasons,´ than those stated by judge, COA can decide
for themselves (defeats the purpose?)
@p 50C(1) ± for verdict loser
@p 50C(2) ± for verdict winner
@p note   loser of JMOL doesn¶t have to request a new trial, to raise on appeal errors that
were Ñproperly preserved: durning the tral.
@p ºf a new trial is granted, no judgment ± no right to appeal until judgmen is entered (eg. at
verdict) ± refects the idea tht trial judges are often right, so we don¶t want to cause
delay/disruption
›p åhen TC grants JMOL and conditional new trial, there is a final judgment,
›p New trial only takes effect if JMOL is reversed ± thus, you must appeal the
JMOL ( 
#$$%
 $$%&

'
rp on appeal, COA can/will review JMOL nad NT grant

50 D P wins verdict, D moves for JNOV

"p P can argue against JNOV, or can just ask for a new trial (50D) or wait until after ruling
to make a new trial motion
›p åill probably wait until after ruling on JNOV to ask for a new trial«doesn¶t
want to say Ѻ could do better´«wants to keep the verdict so will wait for results
of 50Ä renewed motion
@p verdict winner makes the motion for a new trial ± TC judge rules
 ›p if denied, can be renewed on appeal
rp both JNOV and NT decisions reviewed at the same time
rp denial of NT on appeal ± Ê

Ê

likely that it will be upheld ± more
deference than on grant (ct. doesn¶t want new trial both for the sake of
the courts and the litigants themselves)
›p if granted, no appeal until final judgment
rp if new trial reaches oopposite verdict ± party who won first JV but lost
second, on appeal from judgment of 2nd, woul be hard to argue that
granting new trial was abuse of discretion, shouldn¶t have given JNOV
rp that second trial came out other way will be irrelevant on appeal on the
1st trial ± but consider meotionanl tug ± hassle of second trial already
hapepened ± harder to persuade that it was error to

D moves for JNOV

Jury
(and new trial ± in Motions
verdict
last 5)

  moves for a conditional new trial (if JNOV is overturned on

appeal- doesn¶t want JV reisinstated)
(protecting JV loser)
‰ranted, JNOV for
P
D ã may wait for the JNOV decision, and then
has 28 days to move for a new trial (50D)
(protects JV winner)

  moves for a new trial

Denied, upholding
P
JV for P ã  moves for a conditional new trial if JNOV is granted on appeal
(Neely)
COA reviews JNOV grant. ºf overturns, will consider the NT grant
‰ratned,, JNOV D too (but will probably uphold the grant of a new trial rather than
and conditional reinstanting the verdict, because TJ has broad latitutte do grant a
P new trial (if JNOV new trial)
for D reversed on @p note that having the judge decide r.e a new trial right away
appeal) is clearly preferable to making him review it after the
appeal
‰rant JNOV and
P if Appelate Ct agrees that JNOV, but not NT was proper 
NT
Uphold JNOV for D, NT irrelevant

‰rant JNOV and

Pp
NT ºf COA agrees with both JNOV and NT   Uphold JNOV for D

ºf COA agrees that JNOV, but not NT was proper  

Denies JNOV and
ºnitially, won¶t do anything (because NT). ºf P wins, no problem.
Pp grants conditional
Äut if P loses, P will appeal the new trial. COA will reverse, and
NT
order judgment entererd on the first verdict.
Denies both JNOV ºf COA Disagrees on both   can either grant JNOV for D or a new
Pp
and New Trial trial (if improper evience, eg. should grant new trial)
*note that a judge can also Ñdismiss without prejudice´ per  ()
Appeal (50E)
@p reviewed Ê


›p but Ê Ê
` 
Ê `
for granting JMOL before the verdict
@p when one party wiins the verdict, may request new trial on appeal, if on appeal JNOV
granted for other party
@p when JMOL granted/denied, prevailing party may make motion for new trial if appellate
court reverses JMOL decision (awkward)!
@p when JMOL granted but reversed on appeal, COA may
›p order a new trial (een if none was asked for)
rp eg if there was error or to fill in gaps in evdience
›p direct/enter a verdict for the TC verdict loser (Neely, åeisgram)
rp no discretionary second chance here
rp seems at odds with other  proceudre«(renewing, notice, etc.)
@p Re-Hearing on Appeal: ºf COA enter JNOV against you, you can peititon COA for a
rehearing (a second chance to do better ± but the COA will be reluctant to grant it, to say
the least)

Cases
@p Äaltimore v. Redman (1935) #1092   distinguishes Slocum. 50A motion Ñreserves the
right ± so COA  
grant JNOV
@p Unitherm Food Systems v. Swift-Eckrich (Supp o2)   for a COA to grant/consider a
request for a DV/NT (when a 50A motion had been made) a 50Ä or 59 motion must have
been made after the verdict
@p Neely v. Martin Eby Construction (#10o5)   COA isn¶t limited to grantiging a new trial ±
may enter/direct judgment for TC verdict loser
@p åeisgram v. Marley (Supp o9)   in light of TC verdict, COA can, upon throwing out
evidence Ñimproperly admitted´ direct a verict for TC jury loser (rather than ordering a
new trial) ± no second chance. Should have presented best case first time! 
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