An experienced defense lawyer recently shared his experience with me of being upbraided by a trial judge for making a Rule 50 motion for directed verdict in a medical malpractice trial. The lawyer felt he had to do so, in order to protect his record and right to appeal. Most defense lawyers seem to share this view, or at least take a “better safe than sorry” attitude toward pro forma motions for directed verdict.

This is a misconception. This trial judge may have been right– if the plaintiff (or defendant) has put on a legally-sufficient  case, then a motion for directed verdict is inappropriate. After all, it is the trial equivalent of a motion for summary judgment: as long as a minimally-legally-sufficient case has been made, then there is no basis for a directed verdict, and no basis for such a motion.

For example, in a medical malpractice case, if a plaintiff has put on some evidence of the breach of the standard of care (usually requiring experts), causation of injury, and damages, a MDV is ill-taken, no matter how weak the evidence. The standard is a tough one to meet: that no reasonable jury could ever find for the plaintiff on this evidence. About the only time that would happen is if the plaintiff failed to have an expert, or failed to have the expert identify a breach in the standard of care (as opposed to a mere disagreement), or failed to put on any evidence of damages, or of causation.

Are there consequences for not making a motion for directed verdict? Sure, if you don’t make an MDV you cannot make a motion for judgment NOV after the trial, if the verdict goes against you. And you will not be able to challenge the legal sufficiency of the case on appeal. But … so what? If the opponent has met the minimal standards for a legally-sufficient case, you’re going to lose those motions anyway.

I concede that it’s not always black and white. Sometimes it’s not entirely clear whether a legally-sufficient case has been presented by your opponent. Did that expert actually say enough to establish a breach in the standard of care? Was that testimony on causation good enough (e.g. possibility vs. probability)? When in doubt, damn the torpedoes (and the judge), and make the motion.

But It’s not like you have no post-trial options if you fail to make a motion for directed verdict. There’s Rule 59, the motion for new trial. That allows a court to overturn a jury’s verdict for a variety of reasons, including “insufficiency of the evidence” under 59(a)(6). The 59(a)(6) standard is is a MUCH easier standard to meet, and much more difficult to overturn on appeal if a new trial was granted. (And a grant of a new trial motion is not appealable– not until after the case is retried. It’s not a final judgment.) In the Rule 59(a)(6) motion, the judge essentially acts as “The 13th Juror,” and can overturn a verdict with which the court strongly disagrees.)

And, of course, you also have the other Rule 60 motions. These concepts are more fully explained in my paper on trial motions: Motions at Trial- And After.

BTW, the nomenclature under Rule 50 (and the related rules) is changing and we may soon no longer have motions for “directed verdict” in state court. As under the federal rules, the antiquated language is being updated to motion for judgment as a matter of law (for the MDV) and “Renewal of Motion for Judgment as a Matter of Law” (for the MJNOV). (We also eliminated the “gotcha” requiring the renewal of DVs at the close of all the evidence. The rules changes were open for comment until August 8th and were unopposed. I expect the Committee will forward them on to the Supreme Court after its September meeting.

One other thing– these principles apply to plaintiffs as well: don’t forget to make your own motions for directed verdict at the close of the defense case on affirmative defenses that merit the motion. If you don’t, you’ll waive any “legally-sufficient” challenges later on.