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D. Alternative Motion for New Trial

  • Rule 50(b) permits joinder of a Rule 59 motion for a new trial with a renewed motion for judgment as a matter of law (JMOL). Any grounds that would support a motion for a new trial can be asserted and will be tested under the same standards that would apply if the motion were made independently under Rule 59.
  • One ground that should ordinarily be included in every alternative motion for a new trial under Rule 50(b) is that the verdict is contrary to the clear weight of the evidence. The standard for a new trial is obviously much more lenient: the court may consider the credibility of witnesses and the weight of the evidence and may set aside a verdict supported by substantial evidence where the court thinks it is contrary to the clear weight of the evidence or is based upon evidence which is false.
  • The district court has to rule on both branches of the alternative motions. If it grants the motion for JMOL, it is required to specify the grounds for granting or denying the motion for new trial.
  • Appellate review of these rulings is complex, but should be considered to assure all procedural steps have been taken to maximize success on appeal. Basically there are four possible outcomes in ruling on the alternative motions under Rule 50(b):
    • The trial court may deny the motion for JMOL and grant a new trial. If it does, the order is not appealable and the new trial will proceed. In practice, this means there is no appellate review of the ruling because it is difficult to show on appeal following the second trial that even if the denial of the motion for JMOL was erroneous it had a prejudicial effect in the second trial.
    • The court may deny both the Rule 50(b) motion and the motion for a new trial. If it does, the jury's verdict stands and the appeal is from the judgment entered on the verdict. Both the refusal of JMOL and errors of law in the trial court may be raised on appeal. Review is de novo.
      • If the appellate court concludes it was error to deny the motion for JMOL, it has the same choice among ordering entry of judgment for the moving party, ordering a new trial, or remanding for the trial court to determine whether there should be a new trial that it has whenever it reverses a denial of a motion for judgment.
      • It will consider but is not limited to any grounds that the winning party below has asserted as appellee for the grant of a new trial in the event the decision below on the motion for judgment is reversed.
      • If the appellate court concludes that the district court was correct in denying the motion for judgment it may also consider whether the court erred in denying the alternative motion for new trial.
    • The court may grant both the Rule 50(b) motion and the motion for a new trial. If it does so, the grant of a new trial is conditional and becomes effective only if the appellate court reverses the grant of JMOL. Though conditional, the judgment is final and appealable.
      • The party for whom the verdict was returned is entitled to urge that trial errors entitle him to a new trial rather than to entry of judgment against him. That party may move for a new trial within 10 days after the entry of the JMOL, and whether the party has moved for a new trial or not, may argue on appeal that a new trial should be granted rather than judgment entered against him.
      • If the appellate court affirms the grant of JMOL, the case is ended.
      • If it reverses the grant of that judgment, the new trial must proceed unless the appellate court orders otherwise.
      • In passing on the conditional new trial grant, the appellate court may consider only reviewable matters. The grant of a new trial on the ground that the verdict is against the weight of the evidence is generally not reviewable, so the new trial order cannot be examined absent a finding of abuse of discretion below.
    • The trial court may grant the motion for JMOL and conditionally deny the new trial.
      • The party for whom the verdict was returned is entitled to urge that trial errors entitle him to a new trial rather than to entry of judgment against him. That party may move for a new trial within 10 days after the entry of the JMOL, and whether the party has moved for a new trial or not, may argue on appeal that a new trial should be granted rather than judgment entered against him.
      • The party in whose favor the motion for JMOL was granted may argue on appeal as appellee, as an alternative to affirmance, that the denial of the alternative new trial motion was error, and that party need not take a cross-appeal to do so. If the denial of the new trial is challenged in this fashion, the appellate court, after reversing the grant of judgment, will determine whether judgment should be entered on the jury verdict or whether there should be subsequent proceedings.