Revolving Trapdoors: Preserving Sufficiency Review of the Civil Jury after Unitherm and Amended Rule 50

Abstract

The article considers recent case law and an amendment to Rule 50 of the Federal Rules of Civil Procedure. Both change the possibilities and effect, on appeal in federal courts, of procedural lapses and waivers by litigants who wish to seek review of the sufficiency of the evidence to support a jury verdict, as by appeal of a decision on a motion for judgment as a matter of law. Both the timing and completeness of such motions and preservation of sufficiency error are discussed. The U.S. Supreme Court in Unitherm enforced a very strict waiver review that found that such error, and even review for new trial, was fully waived and thus not preserved for any appellate review under the circumstances of the case. The newer Rule 50, on the other hand, more generously expands the timing for adequately making such a motion or raising and preserving the sufficiency issue. Together, these changes solve some common trapdoors for litigants and judges, but create new ones or maintain old ones that should still be considered at trial of civil cases in federal court.