by Wilton H. Strickland

On previous occasions I have discussed various methods of disposing of a complaint before trial, namely a motion to dismiss, a motion for judgment on the pleadings, or a motion for summary judgment. There is another, similar tool for obtaining judgment as a matter of law, one that becomes available during the trial itself: a motion for directed verdict.

The notion of “directing” a verdict strikes some as offensive because we place a high value on having citizen juries resolve our legal disputes. However, it’s important to remember that the role of a jury is to analyze and determine the relevant facts; if the relevant facts are already established beyond dispute, no further fact-finding is necessary and judgment may be entered on the law. Any participation by the jury at that point would be redundant or disruptive. Though there is an argument that the jury should also decide the law and “nullify” it if it sees fit, that’s a whole different topic I won’t go into here.

Once the plaintiff has submitted his case to the jury, the defendant may assert a motion for directed verdict (which Federal Rule of Civil Procedure 50 labels a “motion for judgment as a matter of law”). The basis of the motion is that the facts — as revealed by the trial testimony up to that point — show that the law entitles the defendant to prevail.

For example, in a Florida trial years ago concerning a third-party assault that occurred on my client’s premises, I asserted a motion for directed verdict on the basis that the plaintiffs were not invited onto the property or, alternatively, that they had exceeded the scope of any invitation. Since under Florida law only invitees may demand protection against third-party crimes, I argued that my client was immediately entitled to prevail as a matter of law. I had made this same argument before trial in a motion for summary judgment, which was unsuccessful, but now was the time to re-assert it based on the fresh evidence and testimony submitted by the plaintiffs themselves.

Motions for directed verdict are frequently denied, as was mine, because judges are reluctant to take matters away from a jury and thereby risk reversal on appeal. But my motion was still worthwhile because by asserting it, I secured the right to renew my motion after the jury’s verdict if necessary. This is the so-called JNOV, which is shorthand for a judgment “non obstante veredicto” (judgment notwithstanding the verdict). What this means is that the defendant may proceed to put on his own case after the motion for directed verdict is denied; if the jury delivers an improper verdict, the defendant can renew the motion by making reference to all of the evidence and testimony submitted by either party.

Going back to my case, it wasn’t necessary to assert a motion for JNOV because the case settled just before being submitted to the jury. But my motion had been worth the effort, not only because it motivated settlement negotiations, and not only because it facilitated a JNOV motion, but also because it teed up a strong argument for appeal. This is a major factor for every trial lawyer to bear in mind — creating a record during trial that lays a foundation for appeal if things go wrong. If the jury had found for the plaintiffs, and if a JNOV had been denied, I could have taken the matter to the appeals court and argued as a pure matter of law that the judgment was erroneous and should be reversed. The appeals court is designed to focus on matters of law, so a trial judge’s qualms about ancillary facts or being reversed no longer muddy the waters.

Please note that plaintiffs also are entitled to move for directed verdict and JNOV. This can be slightly more difficult because plaintiffs bear the burden of proof. As a matter of procedure, plaintiffs must also wait until after the defendant has put on his case; only the defendant may move for directed verdict upon the close of the plaintiff’s case (in other words, plaintiffs always have to submit their case before moving for directed verdict, but defendants do not).

Regardless of whether you represent a plaintiff or a defendant, it’s good practice to move for a directed verdict whenever the law and the facts warrant it. You are laying a foundation for JNOV and an appeal. And who knows? The motion might just be granted.