The specificity required in a motion for judgment as a matter of law/directed verdict (“JMOL”) can present challenges to counsel as they argue motions under Rule 50 or its state-law equivalents. Halo Electronics, Inc. v. Pulse Electronics, Inc., --- F.3d ---, 2014 WL 5352367 (Fed. Cir. Oct. 22, 2014), illustrates what happens when a party fails to raise a particular issue in a pre-verdict motion for JMOL.
In Halo Electronics, a jury awarded $1.5 million in damages via general verdict, implicitly rejecting the defendant’s obviousness defense and finding the patent infringement to be willful. Post-verdict, the defendant filed a motion for JMOL based on the obviousness issue. The district court held that because the defendant did not file a pre-verdict motion for JMOL on that issue, the argument had been waived. The Federal Circuit affirmed.
- Motions for JMOL or directed verdict must be made with sufficient specificity to adequately preserve challenges to an adverse verdict.
Tip: So, what can we learn from Halo Electronics?
Give serious consideration as to how best to present your motion. In the trial court, you understandably will want to focus on the strongest arguments and not have weaker arguments detract from those points—in order to have the best chance of winning the motion in the trial court. At the same time, for appellate purposes, you will want to be as broad as possible in asserting grounds for JMOL to cover your bases, while also being specific enough as to each potential issue to avoid waiver.
There is no formula for putting these puzzle pieces together. There are some things, however, you can do that will make your job easier. For example, you should start to outline your JMOL argument in advance of trial so that you are sure to capture all your points.
As the trial proceeds, continue to examine or re-examine the elements of the claims and defenses to determine if there is evidence that supports them. Keep in mind that multiple claims or defenses might have mostly overlapping elements with some minor, but critical differences. For example, you might have a products liability case with allegations of strict liability, negligence, and breach of warranty. They all may require proof of a defect, but then each might have additional distinct elements, some of which have not been proven. You want to make sure you look at each claim separately so as to narrow the claims going to the jury.
Even if you did start early, remember to take a step back before moving for judgment as a matter of law and review the complaint and more importantly, your jury instructions in light of the evidence that was presented. Ultimately, if you are unsure whether the evidence is sufficient, err on the side of being overinclusive.