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.”