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The Judge and the Jury, Part Two


There are several important limitations on the right to seek judgment as a matter of law (j.n.o.v.) after the verdict. Under Fed. R. Civ. P. 50(b) (and many state rules modeled on it), the motion must be filed within twenty-eight days of the entry of judgment on the jury’s verdict.[3] In addition, a party may only move for judgment as a matter of law (j.n.o.v.) after the verdict if he made the same motion (d.v.) before the verdict. See Fed. R. Civ. P. 50(b) (party who made motion for judgment as a matter of law under Rule 50(a) may file a “renewed” motion after verdict).

There are two reasons for this second requirement, one historical and rather silly, the other policy-based and entirely sensible. The historical reason has to do with the Seventh Amendment to the United States Constitution, which provides that “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” Early cases held that it was unconstitutional for the judge to allow the jury to decide the facts and then “reexamine” them through the j.n.o.v. motion. Slocum v. New York Life Ins. Co., 228 U.S. 364 (1913). However, the Supreme Court retreated from this position in Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654 (1935). In Redman, the Court held that it was permissible for the trial court to grant judgment notwithstanding the verdict if the moving party had sought a directed verdict before the jury deliberated and the court had reserved decision on the motion.[4] The first sentence of Rule 50(b) embodies the Redman fiction that the judge who denies a directed verdict has simply delayed decision upon it, rather than “reexamined” the jury’s findings.

The second reason for requiring a pre-verdict motion as a prerequisite for granting judgment as a matter of law (j.n.o.v.) after the verdict is more substantial. A party who moves for judgment as a matter of law at the close of the evidence must state his grounds for concluding that the case should not be submitted to the jury. Fed. R. Civ. P. 50(a)(2); see also Fed. R. Civ. P. 7(b)(1)(B). Thus, the motion will alert the court and the opposing party to the defects in that party’s case before the jury has gone out, while there is still time to offer further evidence to cure the defect. Suppose, for example, that the plaintiff sues an employer for negligence of its employee, but fails to put on evidence that the employee was acting in the scope of employment at the time of the accident. If the employer moves for judgment as a matter of law, it will have to specify that the ground for the motion is the lack of evidence of scope of employment, a crucial element of the claim. Doubtless, the judge will then allow plaintiff to reopen her case to submit evidence on the scope-of-employment question. If the lack of evidence was due to inadvertence, plaintiff will cure it. If, however, it is because plaintiff has no such evidence, she won’t, and the motion will be allowed, either before or after the case goes to the jury.

[3]. Entry of judgment occurs when the court clerk enters a notation of the judgment on the case docket. See Fed. R. Civ. P. 58, 79(a). It is also permissible to seek j.n.o.v. after the verdict but before entry of judgment. Rule 50(b) merely requires that the motion be filed “no later than” twenty-eight days after entry of judgment.
[4]. This was regarded as permissible, despite the “reexamination” clause in the Seventh Amendment, because the court was deemed to have the power to direct the verdict for the defendant without ever sending the case to the jury. If the judge could do that, the Redman court reasoned, he should also be allowed to submit the case subject to a subsequent decision on the directed verdict motion. Instead of “reexamining” the jury’s verdict, the judge is simply “examining” the sufficiency of the evidence for the first time, but a little late.

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