Navigating Trial Decisions Through an Appellate Framework

By Kip Nelson

Trial lawyers have a hard job, and it’s easy for appellate lawyers reviewing a cold record to find fault in the decisions made by their predecessors. As others have recognized, a symbiotic relationship can occur when a trial lawyer and an appellate lawyer work collaboratively during trial to reach the best solution for the client. A recent Court of Appeals decision, Boone Ford, Inc. v. IME Scheduler, Inc., No. COA16-750-2 (N.C. Ct. App. Nov. 6, 2018), provides two helpful reminders for appellate practitioners working at the trial level.

First, the Court of Appeals reiterated that a party cannot move for judgment notwithstanding the verdict unless the party previously moved for a directed verdict. This rule might seem counterintuitive for a party who is asserting a claim; normally one thinks of a motion for directed verdict as being brought by a defending party. Nevertheless, because the third-party plaintiff in Boone Ford had not moved for directed verdict, the court concluded that any argument regarding the third-party plaintiff’s Rule 50 JNOV motion was “not preserved for appellate review.”

Of course, there are other ways to challenge a jury verdict. For example, Civil Procedure Rule 59(a)(7) allows a party to request a new trial on the ground that the verdict was not based on sufficient evidence or was contrary to law. That party is not required to have previously moved for a directed verdict or JNOV to request a new trial on that basis.

Which brings us to the second reminder. Requests for a new trial based on inconsistencies in a jury verdict must be addressed through a Rule 59 motion — they cannot be raised for the first time on appeal. In Boone Ford, the Court of Appeals explained that because the defendant never moved for a new trial on its counterclaim, the issue of a purported inconsistency in the verdict was not properly preserved for appellate review.

Error preservation in the trial tribunal is not always instinctive or the top priority for a litigator in the middle of a trial — which is why an early partnership between trial and appellate counsel can be crucial to pursuing a winning strategy on appeal.