Earlier this week, in a case that attracted media attention, the Sixth Circuit unanimously affirmed a $13.2 million jury verdict in favor of David Ayers, who spent 12 years in prison based on a state-court murder conviction after detectives used a fellow inmate to extract statements from Ayers in violation of his Sixth Amendment right to counsel.  In Ayers v. City of Cleveland, the court reviewed only one of defendants’ challenges on the merits, holding that they had forfeited the others.  The court declined to reach the merits of challenges regarding the sufficiency of the evidence on two claims and the key issue of qualified immunity, which limits the liabilifty of government officers in discretionary functions—such as police officers—to only those instances where their actions violate law that was “clearly established” by the Supreme Court or, at the very least, the relevant circuit court.

Defendants irrevocably lost their opportunity to appeal the issue of qualified immunity when they failed to move for judgment as a matter of law on that issue under Federal Rule of Civil Procedure 50(a) before the case was submitted to the jury.  Although they had made an oral Rule 50(a) motion, the court held that the oral motion did not give notice of the qualified immunity defense by mentioning any of the key phrases associated with it.  The court noted that, even if defendants had made a Rule 50(b) motion on qualified immunity after the verdict, it would have been too late because the 50(a) motion is essential, citing Sykes v. Anderson.  The fact that defendants had made the argument during summary judgment was not enough to preserve the challenge for appeal either.

As we have previously discussed, qualified immunity is an exception to the general rule that denials of summary judgment are unappealable, but the exception only applies when the denial turns on a question of pure law.  In this case, the district court held that issues of fact had precluded a grant of summary judgment, so the exception was likely not applicable.  But even if the district court had been wrong, defendants would have lost their opportunity for interlocutory appeal also, because they filed their notice of appeal 39 days after the denial of summary judgment (9 days too late).

As to their challenge on sufficiency of the evidence, defendants made a Rule 50(a) motion, but failed to follow through with a Rule 50(b) motion pressing that same challenge after the verdict.

This case illustrates that it is never too early to start thinking about appeal.  Especially in a high-stakes case, appellate counsel should be involved from the very beginning, monitoring the case’s progress and making sure that every possible challenge is preserved.  Nobody can guarantee a win on appeal, but counsel ought to at least be able to ensure the court will be able to address the merits.