Other Rules, Other Classes

1
Other Rules, Other Classes

• Rules of Evidence
• When is evidence admissible?
• When is relevant evidence nonetheless
  inadmissible?

• Substantive law
• Whats relevant, or not.

2
Preserving Error

• Pre-trial
• File motions to compel or protective orders
• Try to amend /oppose amending pleadings or SO
• Try to join / oppose joinder of parties and
  claims
• Seek to dismiss / oppose dismissal of claims
  under 12(b)(6)
• MSJ so on

• At trial
• Object to changes to PTO or pleadings
• Object to evidence, either as outside PTO or for
  substantive evidentiary reasons
• Request proper instructions /oppose improper ones
• Move for pre-verdict JMOL

3
The Two JMOLs

• Pre-Verdict JMOL
• Directed Verdict
• Holding theres nothing for the jury to decide
  no reasonable jury could find for the nonmovant.
• Made during trial.

• After Trial Post-Judgment JMOL
• JNOV
• Turning verdict-winner into verdict-loser
  (claim-by-client/defense-by-defense)
• Predicate pre-verdict JMOL
• Granting post-judgment JMOL without a pre-verdict
  JMOL motion violates 7th Amend. Reexamination
  Clause.

4
Pre-Verdict No Earlier Than When Nonmovant
w/BoPers on that Claim/Defense Rests

• Can defendant move under rule 50(a) for JMOL on
  plaintiffs claim? What language permits?
• Whens first moment it can move? Whens last
  moment?
• If prior to that last moment defendant doesnt
  move under 50(a), what cant it do under 50(b)?

• Can plaintiff move for JMOL on defendants
  affirmative defense? What language permits?
• Whens first moment plaintiff can move? Last
  moment?
• If plaintiff doesnt timely move for JMOL on
  defendants affirmative defense, what is the
  consequence under 50(b)?

5
The JMOL Standard (598)

• 50(a) Grant if there is legally insufficient
  evidence for a reasonable jury to find for the
  nonmovant.
• In deciding, judge
• cant weigh credibility
• must view all evidence and permissible inferences
  in light most favorable to nonmovant.

• Easy to state standard
• Grant if
• No evidence
• Merely a scintilla of evidence
• Deny if
• Substantial evidence
• Question is one of credibility
• Hard to apply in close cases

6
Chamberlain (594)

• Facts?
• Who obtained judgment at trial, and how?
• Viewed in light most favorable to plaintiff, what
  was the evidence to support verdict?
• What was the argument not to give that evidence
  any weight?
• What happened in the appellate courts?

• If there is a direct conflict between 1 witness
  and 10, is JMOL proper?
• Why isnt that this case?
• Did the reviewing court make a credibility
  determination?
• Compare Judge Hands statement on 599 with
  595-96.
• Is this case like Bias?
• Can an eyewitness choose between two permissible
  inferences (i.e., speculate)?
• Why not?
• Did that happen here?

7
Pre-Verdict JMOL Impact of Grant

• To extent granted, then as to those claim(s) or
  defense(s), jury doesnt decide anything.
• Judge directs verdict for movant.

• To extent denied, then claims or defenses are
  submitted to jury for verdict
• After jury returns verdict, judge will enter
  judgment in accordance with verdict. See FRCP 58.

8
Practicalities JMOL

• To extent granted
• Jury will not decide
• Issue on appeal will be that judge erred in
  granting JMOL.
• Appellant (nonmovant on jmol) can get the grant
  of JMOL reversed simply by showing that more than
  a scintilla of evidence substantial evidence --
  supported nonmovant and a reasonable jury could
  have found for it.
• There has to be no evidence on one or more
  elements.

• To extent denied
• Jury will decide
• If movant wins verdict (as judge thinks likely),
  then issue on appeal will be whether substantial
  evidence supports jury verdict.
• Much easier to sustain.
• So, judge who thinks pre-verdict JMOL proper will
  often deny it.
• If jury comes out right way, movant is in better
  place.
• If jury comes out wrong way, pre-verdict movant
  can still make post-judgment jmol and/or new
  trial motions...

9
First Verdict, then Judgment

• Every judgment must be in a separate document.

• After verdict returned, winner should request
  judgment be entered in its favor.
• Judge then enters judgment.
• Entry starts post-judgment time table.