The U.S. Equal Employment Opportunity Commission
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 Rule 50 motions. 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 Rule 50 motions. 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.
This page was last modified on May 18, 2005.
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