You Just Lost The Trial, or Did You? Motions During and After Trial Can Reverse a Bad Result

I have tried numerous business cases with a fine record of success.  Trials are, however, an uncertain process, and if one tries enough cases, the most skilled trial lawyer will eventually lose a jury verdict.

When a trial lawyer hears an adverse verdict in court, should s/he walk away, shoulders slumped, counting for vindication on the power of an appellate brief due many months hence?  No.  A trial lawyer’s efforts to reverse an adverse jury verdict begins while the jury is still standing in the jury box.

The first question one must ask, seconds after hearing an adverse verdict, is whether the verdict is ambiguous or contradictory.  Verdict forms often require the jury to answer a series of questions.  Were they answered in a way that supports the result?  For example, did the jury answer the questions for the plaintiff but fail to award damages?  Did the jury answer a question against the plaintiff but still award damages on that cause of action?  If the verdict doesn’t make sense, don’t stand there stunned and let the judge discharge the jury.  Object and perhaps ask to see the written verdict while you collect your thoughts.  One can ask the trial judge to further instruct the jury and send them back to the jury room to render a verdict that is internally consistent.  Failure to object in the trial court to an ambiguous or contradictory verdict will likely waive an objection to the verdict on that ground on appeal.

When a jury is discharged, most judges invite jurors to linger in the courtroom hallway to talk to the parties.  Many jurors bolt for the exit but some will stay and talk.  Never miss this opportunity, even if you won the case.  Have someone with you who can help you talk to jurors who stay.  Maybe you will learn that something happened in the jury room that could be grounds to claim juror misconduct.  Did a juror reveal bias concealed by voir dire?  Did the jurors rely on information not in evidence?  Ask jurors whether you can contact them and take their phone numbers.

Once the jury departs and the trial is over, the aggrieved party has a chance to make post-trial motions, the filing of which delay the deadline for a notice of appeal.  The two most common are a motion for judgment notwithstanding the verdict (“JNOV”) and motion for new trial.

JNOV is available if, taking as true all evidence in support of the verdict and all inferences favoring the winning party, there was still no substantial evidence to support the verdict.  These are the same standards that apply to a motion for directed verdict or nonsuit during the trial.  Even if such a motion was made and denied during the trial, the trial judge may have wanted to see the jury’s verdict before deciding the issue.  Make the JNOV motion if you think you have grounds.  The defense need only show that there was no substantial evidence supporting any element of the plaintiff’s burden of proof.  JNOV for the plaintiff, however, is only appropriate where all of the evidence supported the plaintiff and there was no substantial evidence supporting any defense.

Even where substantial evidence supports the verdict, there may be grounds for a new trial.  The grounds are varied and are listed in CCP § 657.  They include: (1) “irregularity of the proceedings,” for example misconduct of the trial judge or counsel; (2) “jury misconduct,” including concealed bias, communications or research outside the jury room, consideration of facts not in evidence or a chance verdict; (3) “accident or surprise” unavoidable through ordinary prudence, for example an amendment during trial to raise entirely new issues; (4) “newly discovered evidence” that is material and was unavailable despite reasonable diligence to obtain the information; (5) “excessive” or “inadequate” damages, where all of the evidence shows that a high award was  the product of passion and prejudice or that the jury should have awarded higher damages; (6) “insufficient evidence” or a verdict “against law,” standards that give the trial judge the ability weigh the evidence and conclude that the verdict was unsupported or contrary to all of the evidence or instructions; and (7) “error in law,” any legal error that materially affected the proceedings, for example instructional error.

There are many steps between a jury verdict and a final judgment.  Start your attack on an adverse verdict before the jury gets away and before any notice of appeal.