How to oppose a motion for a directed verdict

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How to oppose a motion for a directed verdict

A directed verdict is a case in which a judge stops a trial on the grounds that the burden of proof has not been met and there is only one possible verdict in the case, which would be dismissal in the case of a civil case and acquittal in the case of a criminal one. Directed verdicts are rare, but they do happen. Lawyers may file a motion for directed verdict or a motion for dismissal on the grounds that the other side has not presented enough evidence to prove its case.

Directed verdicts occur when it is clear that the side which bears the burden of proof has failed to satisfy it and that as a matter of law, the court cannot rule in favor of this side. This may occur for a variety of reasons, ranging from poorly presented evidence to lack of evidence to support the charges being brought in court. While the jury can decide on matters of fact after hearing all of the evidence, judges can weigh the fact of law and determine that one side has no case and the trial should not go forward.

When a lawyer files a motion for directed verdict, the judge will weigh the legal aspects of the case and determine whether or not a directed verdict is supportable. Many lawyers file such motions without a realistic hope of having the judge return a directed verdict, but it may be a step in the legal process for a given case. If the motion is denied, the lawyer will have to present a case which refutes the case set out by the other side.

Lawyers discuss motions they are planning to make in court with their clients, to allow their clients an opportunity to have input into the handling of the case. In addition, explaining helps people understand how the legal process works so that they will be able to follow the events of the trail.

Historically, when a directed verdict was given, judges instructed the jury to return the verdict, while today a directed verdict may be returned without consulting the jury. The directed verdict cannot be one of guilt, because this would deprive someone of a fair trial; if the burden of proof for guilt appears to have been satisfied, the defense still has an opportunity to refute claims made by opposing counsel in its own arguments. Failure to allow the defense to present would be considered a miscarriage of justice.

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

How to oppose a motion for a directed verdictMary McMahon

Ever since she began contributing to the site several years ago, Mary has embraced the exciting challenge of being a researcher and writer. Mary has a liberal arts degree from Goddard College and spends her free time reading, cooking, and exploring the great outdoors.

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The Importance Of Moving For A Directed Verdict

  • Apr 3, 2018
  • Wilton Strickland
  • 0 Comments

by Wilton H. Strickland

How to oppose a motion for a directed verdict

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.

I am an entrepreneur and freelance paralegal who worked in California and Federal litigation from 1995 through 2017. I have created over 300 sample legal documents which are sold at http://www.scribd.com/LegalDocsPro Subscribe to my FREE weekly newsletter with legal tips and tricks for California and Federal litigation. http://freeweeklylegalnewsletter.gr8.com/

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Friday, July 4, 2014

Code of Civil Procedure section 630 directed verdict motion in California

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

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Current as of January 01, 2019 | Updated by FindLaw Staff

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(a) The court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, after five days’ notice, or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.

(b) A motion for judgment notwithstanding the verdict shall be made within the period specified by Section 659 for the filing and service of a notice of intention to move for a new trial. The moving, opposing, and reply briefs and any accompanying documents shall be filed and served within the periods specified by Section 659a , and the hearing on the motion shall be set in the same manner as the hearing on a motion for new trial under Section 660 . The making of a motion for judgment notwithstanding the verdict shall not extend the time within which a party may file and serve notice of intention to move for a new trial. The court shall not rule upon the motion for judgment notwithstanding the verdict until the expiration of the time within which a motion for a new trial must be served and filed, and if a motion for a new trial has been filed with the court by the aggrieved party, the court shall rule upon both motions at the same time. The power of the court to rule on a motion for judgment notwithstanding the verdict shall not extend beyond the last date upon which it has the power to rule on a motion for a new trial. If a motion for judgment notwithstanding the verdict is not determined before that date, the effect shall be a denial of that motion without further order of the court.

(c) If the motion for judgment notwithstanding the verdict is denied and if a new trial is denied, the appellate court shall, if it appears that the motion for judgment notwithstanding the verdict should have been granted, order judgment to be so entered on appeal from the judgment or from the order denying the motion for judgment notwithstanding the verdict.

(d) If a new trial is granted to the party moving for judgment notwithstanding the verdict, and the motion for judgment notwithstanding the verdict is denied, the order denying the motion for judgment notwithstanding the verdict shall nevertheless be reviewable on appeal from that order by the aggrieved party. If the court grants the motion for judgment notwithstanding the verdict or of its own motion directs the entry of judgment notwithstanding the verdict and likewise grants the motion for a new trial, the order granting the new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed, and the order granting a new trial is not appealed from or, if appealed from, is affirmed.

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(a) Unless the court specified an earlier time for making a motion for directed verdict, after all parties have completed the presentation of all of their evidence in a trial by jury, any party may, without waiving his or her right to trial by jury in the event the motion is not granted, move for an order directing entry of a verdict in its favor.

(b) If it appears that the evidence presented supports the granting of the motion as to some, but not all, of the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed on any remaining issues. Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment, in addition to any matter determined in the trial, shall reflect the verdict ordered by the court as determined by the motion for directed verdict.

(c) If the motion is granted, unless the court in its order directing entry of the verdict specifies otherwise, it shall operate as an adjudication upon the merits.

(d) In actions which arise out of an injury to a person or property, when a motion for directed verdict was granted on the basis that a defendant was without fault, no other defendant during trial, over plaintiff’s objection, shall attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion.

(e) The order of the court granting the motion for directed verdict is effective without any assent of the jury.

(f) When the jury for any reason has been discharged without having rendered a verdict, the court on its own motion or upon motion of a party, notice of which was given within 10 days after discharge of the jury, may order judgment to be entered in favor of a party whenever a motion for directed verdict for that party should have been granted had a previous motion been made. Except as otherwise provided in Section 12a , the power of the court to act under the provisions of this section shall expire 30 days after the day upon which the jury was discharged, and if judgment has not been ordered within that time the effect shall be the denial of any motion for judgment without further order of the court.

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(A) Before Submission to the Jury. After the prosecutor has rested the prosecution’s case-in-chief or after the close of all the evidence, the court on the defendant’s motion must direct a verdict of acquittal on any charged offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government’s evidence, the defendant may offer evidence without having reserved the right to do so.

(B) Reserving Decision. The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence) , submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

(C) After Jury Verdict. After a jury verdict, the defendant may file an original or renewed motion for directed verdict of acquittal in the same manner as provided by MCR 6.431(A) for filing a motion for a new trial.

(D) Bench Trial. In an action tried without a jury, after the prosecutor has rested the prosecution’s case-in-chief, the defendant, without waiving the right to offer evidence if the motion is not granted, may move for acquittal on the ground that a reasonable doubt exists. The court may then determine the facts and render a verdict of acquittal, or may decline to render judgment until the close of all the evidence. If the court renders a verdict of acquittal, the court shall make findings of fact.

(E) Conditional New Trial Ruling. If the court grants a directed verdict of acquittal after the jury has returned a guilty verdict, it must also conditionally rule on any motion for a new trial by determining whether it would grant the motion if the directed verdict of acquittal is vacated or reversed.

(F) Explanation of Rulings on Record. The court must state orally on the record or in a written ruling made a part of the record its reasons for granting or denying a motion for a directed verdict of acquittal and for conditionally granting or denying a motion for a new trial.

Rule 50. Motion for a directed verdict and for judgment notwithstanding the verdict.

(a) When made; effect. – A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order granting a motion for a directed verdict shall be effective without any assent of the jury.

(b) Motion for judgment notwithstanding the verdict. –

(1) Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the submission of the action to the jury shall be deemed to be subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned such party, within 10 days after the jury has been discharged, may move for judgment in accordance with his motion for a directed verdict. In either case the motion shall be granted if it appears that the motion for directed verdict could properly have been granted. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the judge may allow the judgment to stand or may set aside the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the judge may direct the entry of judgment as if the requested verdict had been directed or may order a new trial. Not later than ten (10) days after entry of judgment or the discharge of the jury if a verdict was not returned, the judge on his own motion may, with or without further notice and hearing, grant, deny, or redeny a motion for directed verdict made at the close of all the evidence that was denied or for any reason was not granted.

(2) An appellate court, on finding that a trial judge should have granted a motion for directed verdict made at the close of all the evidence, may not direct entry of judgment in accordance with the motion unless the party who made the motion for a directed verdict also moved for judgment in accordance with Rule 50(b)(1) or the trial judge on his own motion granted, denied or redenied the motion for a directed verdict in accordance with Rule 50(b)(1).

(c) Motion for judgment notwithstanding the verdict – Conditional rulings on grant of motion. –

(1) If the motion for judgment notwithstanding the verdict, provided for in section (b) of this rule, is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate division has otherwise ordered. In case the motion for new trial has been conditionally denied, the appellee on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate division.

(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may serve a motion for a new trial pursuant to Rule 59 not later than 10 days after entry of the judgment notwithstanding the verdict.

(d) Motion for judgment notwithstanding the verdict – Denial of motion. – If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate division concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate division reverses the judgment, nothing in this rule precludes it from determining that the appellee is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted. (1967, c. 954, s. 1; 1969, c. 895, s. 11.)

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Rule 8.54. Motions

(a) Motion and opposition

(1) Except as these rules provide otherwise, a party wanting to make a motion in a reviewing court must serve and file a written motion stating the grounds and the relief requested and identifying any documents on which the motion is based.

(2) A motion must be accompanied by a memorandum and, if it is based on matters outside the record, by declarations or other supporting evidence.

(3) Any opposition must be served and filed within 15 days after the motion is filed.

(Subd (a) amended effective January 1, 2007.)

(b) Disposition

(1) The court may rule on a motion at any time after an opposition or other response is filed or the time to oppose has expired.

(2) On a party’s request or its own motion, the court may place a motion on calendar for a hearing. The clerk must promptly send each party a notice of the date and time of the hearing.

(c) Failure to oppose motion

A failure to oppose a motion may be deemed a consent to the granting of the motion.

Rule 8.54 amended and renumbered effective January 1, 2007; repealed and adopted as rule 41 effective January 1, 2005.

Advisory Committee Comment

Subdivision (a). A party other than the appellant or petitioner who files a motion or opposition to a motion may be required to pay a filing fee under Government Code sections 68926 or 68927 if the motion or opposition is the first document filed in the appeal or writ proceeding in the reviewing court by that party. See rule 8.25(c).

Subdivision (c). Subdivision (c) provides that a “failure to oppose a motion” may be deemed a consent to the granting of the motion. The provision is not intended to indicate a position on the question whether there is an implied right to a hearing to oppose a motion to dismiss an appeal.