Almost every lawyer has been interrupted, sometimes even stopped mid-sentence, by a judge during oral argument. When that happens, traditional wisdom—and common sense—teaches that the most professional response is for the lawyer to stop talking and follow the judge’s direction on the point. If the judge has a question, answer it directly and succinctly. But what happens when the judge seems to have missed or overlooked essential elements of your argument or won’t let you finish your argument? What to do then? This is where it can get tricky.
You don’t want to be disrespectful, unprofessional, or rude in challenging the judge or continuing to press a point that the court has already made up its mind about. But you do have a professional obligation to make a record in order to preserve the issue, either for a motion for reconsideration or possibly appeal. Failing to make a record can have dire consequences.
This was starkly demonstrated in a Southern District of New York case. The court found a party had waived its ability to bring a post-trial challenge to certain trial findings in a renewed Rule 50(b) motion, even though during argument on the Rule 50 motion brought during trial, the judge had cut the defense attorney off and summarily denied the motion before the attorney was able to articulate any specific grounds on which he was bringing the motion. The trial court later also denied a motion for reconsideration.
In 4 Pillar Dynasty LLC v. New York & Co., Inc., trademark owners sued a clothing seller alleging trademark infringement in connection with women’s activewear apparel. The plaintiffs alleged violations of the Lanham Act and New York law and sought to recover the clothing seller’s profits. At trial, the plaintiffs presented only one witness. After the plaintiffs rested their case, and before the defendants called their first witness, the defendants made an oral motion for judgment as a matter of law.
Under Rule 50(a), when a party has been fully heard on an issue during a jury trial, if the court finds that the evidence is not legally sufficient for a reasonable jury to find for the party on that issue, the court may grant a motion for judgment as a matter of law against the party “on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.” Fed. R. Civ. P. 50(a)(1). The motion must be made before the case goes to the jury and must specify the judgment sought and the particular law and facts that entitle the moving party to judgment. Fed. R. Civ. P. 50(a)(2).
In 4 Pillar, however, defense counsel had barely begun his argument on the Rule 50 motion when the court denied the motion in the following exchange, cited in the published decision:
The jury returned a verdict for the plaintiffs and made an advisory finding that the infringement was willful. The judge entered judgment, agreeing with the jury’s opinion as to willfulness and awarding $5.59 million to the plaintiffs. The defendants then sought to renew their motion for judgment as a matter of law under Rule 50(b) or, alternatively, Rule 59(e) to alter and amend the judgment and vacate the monetary award.
The defendants argued that there was no legal basis for the court’s monetary award because the Lanham Act requires a finding of actual confusion and willfulness to support such an award and there was insufficient evidence in the trial record to support findings on either issue.
The court found that the defendants had waived their post-judgment challenge on willfulness because the defendants were presenting this ground for the first time after trial. The court explained that motions under Rule 50(b) require that the moving party have previously presented the grounds for the motion to the court and any renewed motion is limited to grounds specifically raised in the prior motion for judgment as a matter of law. The court also rejected Rule 59(e) as a basis for the defendants’ motion because Rule 59(e) requires the moving party to point to controlling decisions or data that the court overlooked. Thus, the court denied the post-judgment motion, noting that while the defendants had moved for judgment as a matter of law before the case went to the jury, “they did so in a merely perfunctory manner, without specifying any particular ground for their motion.”
The defendants tried to argue that they should be excused for not articulating specific reasons for their original motion because the court had denied the motion before they had a chance to do so. The court rejected that argument, too, saying even though it had promptly denied the earlier motion, the defendants’ counsel made no effort to preserve the issue. A harsh result indeed—some might even say unfair.
The lesson of 4 Pillar is clear: On all types of motions, but especially motions under Rules 50 and 59, counsel must make an adequate record of all the grounds on which relief is sought in order to preserve the right to seek review of an adverse ruling. This is crucially important when arguing oral motions, or even evidentiary objections, where there may be no formal briefing for the court to consider. And while it’s less likely to be an issue when arguing written motions, the principle is just as important: If the argument isn’t in your papers or made on the record, it’s not properly presented to the court for consideration.
Judges, both state and federal, have busy dockets and their hearing calendars are full. Besides all that, judges are people too. Sometimes the press of business, impatience, or just plain crankiness (shudder!) might cause a judge to interrupt, curtail, or even derail your oral argument. If that happens, find a polite way to indicate that you understand the court has made its ruling, but ask if the court will allow you to put any grounds you have not yet addressed on the record. Be professional. Be courteous. Be brief. But most of all make your record! If you don’t, the consequences can be devastating.
