Practice Pointers

• Publication year: 1997
• Pages: 17

PRACTICE POINTERS Vol. 2 No. 2 Pg. 17 Utah Bar Journal Summer, 1997

Motions at Trial-and After

Francis J. Carney, J.

There must be some kind of way out of here, said the joker to the thief;

There's too much confusion, I can't get no relief. — Bob Dylan, All Along the Watchtower

Although it is indisputably a dry and perhaps dull topic, a working knowledge of the grounds and distinctions between the various trial and post-trial motions is essential for one who would try lawsuits. Properly asserted motions can and do win trials. Likewise, counsel's failure to make the right motion at the proper time may doom the appeal. This article summarizes what motions should be made, and when.

Motions at Trial

The motions that are most likely encountered in trial are a motion to dismiss in a bench trial and a motion for directed verdict in a jury trial, although not uncommonly the motion in limine and the Rule 47(r) motion will be necessary.

1. Motion to Dismiss

Utah Rule of Civil Procedure 41 (b) provides in relevant part that:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).

In federal actions, the counterpart rule is now Federal Rule of Civil Procedure 52(c), "Judgment on Partial Findings." Unlike the motion for directed verdict, this rule contemplates that the court in a bench trial may not only determine the legal sufficiency of the plaintiff's case, but also may decide the case on the merits, if it so chooses.^[1] That is, the trial judge may determine that the plaintiff has met the burden of going forward but not the burden of persuasion.

For example, in a medical malpractice action, a plaintiff must normally produce expert testimony establishing both a deviation from the standard of care and that the deviation proximately caused the plaintiff's injuries. If the plaintiff's expert testifies as to both requirements, neither a directed verdict in a jury trial nor a Rule 41(b) "legal sufficiency" motion in a bench trial should be granted. But the court in a bench trial may grant a Rule 41(b) dismissal at the close of the plaintiff's case if it is not persuaded by the plaintiff's evidence. The court does not need to wait to hear the defendant's evidence to decide the case.

The basis on which the Rule 41(b) motion was granted is crucial to the standard of review on appeal. If the trial court dismissed the action as a matter of law, the appellate court will review the evidence in the light most favorable to the plaintiff, and will affirm the dismissal only if there was no competent evidence to support the plaintiff's claim. But if the trial court dismissed the case on the facts, then appellate review is limited to a review of the evidence in the light most favorable to the trial court's findings of fact, that is, in the light most favorable to the defendant, and the findings will be allowed to stand if reasonable minds could agree with them. Given this difference in the standards of appellate review, astute defense counsel will afford every opportunity for a trial judge to frame his or her decision as one made on the facts, and not as a matter of law.

2. Motion for Directed Verdict

As its name implies, the motion for directed verdict is used only in jury trials and should not be confused with its bench trial equivalent, the Rule 41(b) motion. Federal Rule of Civil Procedure 50(a) now uses the terminology "motion for judgment as a matter of law," while Utah Rule of Civil Procedure 50(a) keeps the traditional nomenclature of a "motion for directed verdict."

Under either version of the rule, a directed verdict may only be granted if, after reviewing the evidence in the light most favorable to the non moving party, the trial court concludes that there is no competent evidence which would support a verdict in its favor. See DeBry v. Cascade Enters., 879 P.2d 1353, 1359 (Utah 1994); Galloway v. United States, 319 U.S. 372, 389-96 (1943). If reasonable minds could differ on the issue in controversy, the motion must be denied. See id.; Management Comm. of Gray stone Pines Homeowners Ass'n v. Graystone Pines, Inc., 652 P.2d 896, 897-98 (Utah 1982).

The term "directed verdict" is an anachronism. There is no verdict, directed o r otherwise. In earlier times, the court granted the motion and then sought the assent of the jury to its decision to enter judgment. That is no longer necessary and no verdict of any kind is reached: the court simply makes its ruling and, later, a written judgment. The jury plays no part in it.^[2]

The court may deny the motion, grant it, or withhold its ruling until after the jury reaches a verdict. If the verdict is for the moving party, the issue is moot. If the verdict is against the moving parly, and the trial court granted the motion, then the appellate court may simply reinstate the verdict if it reverses the trial judge. But if the trial court granted the motion and took the case away from the jury before it reached a verdict, a reversal on appeal will require a new trial that might otherwise have been avoided. For that reason, the preferred practice may be to submit the case to the jury even if the court intends to grant a judgment as a matter of law.^[3]

In order to make a motion for judgment notwithstanding the verdict under Rule 50(b), a directed verdict motion must be made at the close of the opponent's case and renewed at the close of all the evidence. The introduction of evidence after the denial of the motion constitutes a waiver of any future objections to the sufficiency of the evidence if the movant fails to renew the motion at the close of all the evidence.^[4] This, in theory, gives the non-moving party the opportunity to correct the deficiency in its case—if the court is inclined to allow a chance to correct it.

Counsel should keep in mind that an appellate court, in the absence of plain error, only reviews the decisions of the trial court; if no decision on a motion for judgment notwithstanding the verdict or motion for new trial was made concerning the sufficiency of the evidence, then the appellate court has nothing to review. The appellate court does not function as the initial reviewer of the sufficiency of the evidence; rather, it only reviews the reviewer, the trial court. And if the trial court was not given the opportunity to review the sufficiency of the evidence under a Rule 50(b) or 59(a) motion, there is nothing for an appellate court to review either.

3. Motions Under Rule 47(r)

Utah Rule of Civil Procedure 47(r) is one of those little-known rules that snares the unwary.^[5] It provides simply that, "If the verdict rendered is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be sent out again." This seemingly innocuous statement has been interpreted to mean that an objection must be made before the court discharges the jury whenever a verdict is incomplete or facially incorrect. Otherwise, an appeal on the issue is waived.

For example, if in a personal injury case a jury returns a verdict awarding special damages but no general damages, one would think that a Rule 59(b)(5) motion for new trial based upon inadequacy of damages would be well-grounded. Not so. This error is apparent on the face of the verdict and counsel is required to object and move the court to send the jury out again to clarify its verdict.^[6] Another reported example is a jury's inconsistent answers to the special verdict interrogatories.^[7]

The moments after the clerk reads the jury's decision are not conducive to a reasoned analysis of the verdict. The hour is often late, counsel may be...