Academic journal article The Review of Litigation

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

Academic journal article The Review of Litigation

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

Article excerpt

It is already a monstrous uphill climb to win appellate review of judgments entered on civil jury verdicts in the federal courts. Jury findings of fact have their own strict protection from judicial review, and that deference carries over to the appellate court. On appeal of even mundane jury findings for sufficiency of the evidence, a verdict will not be overturned without a finding that the jury acted unreasonably.1

The Seventh Amendment demands no less,2 nor does its current implementation in Rule 50 of the Federal Rules of Civil Procedure (Federal Rules).3 All factors-constitutional and historical,4 political and institutional5-press for deference to the jury in this instance and limit the judicial scrutiny that appellate judges may be tempted to undertake when faced with questionable jury findings. Time and again, the United States Supreme Court has warned appellate courts to make this deference to elemental findings of fact really count.6 Objections to such a finding, claiming the evidence is insufficient to support the verdict, are typically rejected under a deferential standard of review.7 But at least the promise of review lives.

The news gets worse for some litigants. The climb becomes as steep and tall as Mount Everest if the complaining party has failed to make the necessary objections at trial. What would be improbable review now becomes impossible or nearly so. In some instances and in some courts, sufficiency review is entirely foreclosed.8 Even if other situations or courts offer the hope of procedural forgiveness, it often takes the form of a standard of review so strict that it makes the unpreserved objection largely fatal and the verdict virtually unassailable as a matter of sufficiency review.9 Some judges will write, in exceptional cases, that they can still review the verdict for plain error or a miscarriage of justice, but this glimpse of daylight is nearly always stated in dicta-in the course of finding that no such plain error or miscarriage occurred and the verdict must be affirmed, regardless of any procedural generosity offered in that court or situation. At best the litigant might hope for a new trial (granted under a similarly deferential standard),10 but true sufficiency review is foreclosed, effectively waived, or made so difficult as to be practically unhelpful or illusory.

The news got even darker last year in a Supreme Court case resulting in a total waiver. In its 2006 decision in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc.,11 the Court refused to offer even a glimmer of hope-any kind of review at all, even just for whether a new trial should be ordered because the evidence weakly supported the result. In that case, the Court categorically stated that "there was no basis for review of respondent's sufficiency of the evidence challenge in the Court of Appeals."12 This conclusion applied to a fairly specific context, one in which the failure of preservation below is so total as to preclude even new trial review because the party has failed to preserve that fallback option too. However, this recurs enough that the opinion should serve as a wake-up call for all lawyers practicing in federal court.

This is one procedural trap in which litigants simply do not want to find themselves-least of all the defendant in Unitherm, ConAgra, who had won an appellate reversal of a jury decision in a case where little or no evidence supported the jury finding on an essential element of economic damages. But ConAgra lost the war in the Supreme Court and the unsupported verdict against it reinstated. '

The news did, however, get somewhat better for litigants caught in a different but related sort of trap that has existed for years under the Federal Rules. The recent amendment to Rule 50,14 effective December 1, 2006, solves one relatively common dilemma: some litigants, apparently reasonably represented by otherwise experienced trial lawyers,15 found themselves failing to properly make an initial and appropriate objection to sufficiency of the evidence (which must then be renewed post-verdict). …

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