Three lawyers and a robot walk into a bar...

and debate motions practice.

Trigger warning: This week’s post is about a case in which the Supreme Court will decide whether purely legal issues raised at summary judgment have to be re-raised in a Rule 50 motion to be preserved for appeal. If this sounds incomprehensible, or incomprehensibly dull, to you, feel free to come back next week when the topic will be juicier. I understand that any law professor who even attempted to write a law review article on this topic would be immediately stripped of tenure and condemned to permanent adjunct status.

But as a dyed-in-the-wool practitioner, who lies awake at night in mortal terror that I will waive something, well, I care. To keep things moving, this week’s post will be in the form of a dialogue among the following fun-filled characters:

• RACHEL, the paramour of Rules.

• SIMON, the infatuate of Standards.

• THEODORE, the Troll.

• ALICE, the AI.

First, some background.

The Federal Rules of Civil Procedure permit a party (usually the defendant) to file a motion for summary judgment before trial. A motion for summary judgment essentially says: “it’s so clear that I should win the case that a trial is a waste of time.”

A party may seek summary judgment for many reasons. Sometimes it argues that there is some kind of legal bar to the suit—in which case, the opponent will respond that no, there is no legal bar. Other times it argues that its opponent has insufficient evidence for a reasonable jury to rule in its favor—in which case, the opponent will present declarations and exhibits to the court, and say: “here’s the evidence I intend to present at trial; if the jury believes my witnesses and accepts my interpretation of the evidence, I will win.” Oftentimes the summary judgment argument is in between those two poles. For example, a defendant might argue that no reasonable jury can find that the defendant acted negligently. In response, the plaintiff will make both legal arguments—“as a legal matter, it’s much easier to prove negligence than the defendant claims”—and factual arguments—“I’ve got lots of smoking-gun evidence of negligence.”

Suppose the case goes to trial. When the trial is over, a litigant is allowed to file two motions under Federal Rule of Civil Procedure 50. Before the jury decides, the litigant files a so-called Rule 50(a) motion, arguing: “it’s so obvious I should win that the jury shouldn’t even be permitted to decide the case.” These motions are almost always denied. The jury has sat through the whole trial; might as well give it a shot to reach a verdict.

Dramatically, the jury renders its verdict. But the case is not over yet. After the jury rules, the losing party has a chance to renew its motion, this time under Rule 50(b). The losing party argues: “Who cares what the jury said; I deserve to win.” District judges usually don’t throw out the jury verdict, but occasionally they do. If the district judge denies the Rule 50(b) motion, the losing party can appeal that denial, along with other adverse rulings along the way.

Can the losing party renew the arguments it made in its summary judgment motion on appeal?

Sometimes, clearly no. Suppose the defendant argued at summary judgment: “Judge, I promise you, my opponent has insufficient evidence to win.” The plaintiff responded: “Here’s the evidence I’m planning to present at trial, I promise, it will be enough to win.” The judge rules: “If, hypothetically, the plaintiff presents the evidence it promises it’s going to present, a reasonable jury could rule in its favor, so I’m letting this case go to trial.” By the time the jury renders its verdict, this argument is moot. It doesn’t matter anymore what evidence the plaintiff might hypothetically present. The trial is over; there are no more hypotheticals. What now matters is whether the plaintiff actually presented sufficient evidence to persuade the jury, not whether it could hypothetically do so.

But what if the party raised a purely legal question at summary judgment that didn’t depend on the evidence at trial? Suppose, based on facts that all parties agreed were true, the party argued that the law required ruling in its favor? Does the litigant have to re-raise this argument in the Rule 50 motion to preserve it for appeal, or is raising it in the summary judgment motion enough? That is the subject of Dupree v. Younger, which the Supreme Court will hear next month.

Enough wind-up, let’s move on to the main event.

Simon: It is dumb to require litigants to re-raise a purely legal argument after the trial. What’s the point? The litigant has already lost this argument. Forcing the litigant to re-raise it wastes everyone’s time. Usually litigants get sanctioned for re-raising arguments they have already lost. Forcing litigants to do this is just a trap for the unwary.

Rachel: It is dumb to create a carve-out for “issues of law.” In every appeal, there’s going to be a section of the brief where one party says something is an “issue of law” and hence preserved, and the other party says it’s more of a “mixed issue of fact and law” and hence not preserved, and the court has to waste time deciding this esoteric issue before getting to the merits. Why waste time with this? Why not just create a clear rule, if you didn’t raise it at Rule 50, you lose?

Simon: Isn’t it sometimes obvious though that an argument presents an issue of law, with no difficult line-drawing necessary? What about where—

Rachel: I am sorry, I am going to interrupt you there. “It doesn’t matter that the standard is not administrable because there are occasional clear cases” gives me heart palpitations.

Simon: Anyway, this is not going to happen in “every appeal.” This isn’t going to come up that often. Most lawyers are going to preserve their arguments at the Rule 50 stage anyway.

Rachel: Exactly! Regardless of who wins this case, any competent lawyer is going to preserve all summary judgment arguments anyway after trial to moot any waiver concern. It is extremely easy to preserve all your summary judgment arguments. You already made them! Just repeat them! So your proposed rule will exist purely to protect inept lawyers. Is this really worth it?

Simon: So that’s what you want? Having a lawyer read his summary judgment brief to the court while everyone falls asleep? How about a “clear rule” that lawyers should not have to waste time with pointless objections?

Rachel: He doesn’t have to read the whole brief. He just has to briefly summarize the arguments in a sentence or two.

Simon: Is it enough for the lawyer to say: “I would like to preserve the arguments in Parts I, II, and III of my summary judgment motion for purposes of appeal”?

Rachel: That is probably enough.

Simon: OK, what if the judge enacts a local rule in which all Rule 50 motions must be submitted with a cover sheet to be found on the judge’s website. The cover sheet says: “I preserve all summary judgment arguments.” Is this enough to preserve all summary judgment arguments in all cases?

Rachel: Umm, I guess it probably has to say a bit more than that to preserve it for appeal.

Simon: AHA! So much for clear rules! Gotta love that easily administrable “a bit more than that” standard.

Rachel: One sentence per argument. Doesn’t have to be a run-on sentence. One noun, one verb.

Simon: Let’s shift gears to history. The petitioner claims that there are 19th-century cases supporting the no-Rule-50-motion position, such as a decision from 1810 in which Chief Justice Marshall agreed to consider some argument despite the absence of a motion “in arrest of judgment.” Checkmate!

Rachel: Seriously, you think Chief Justice Marshall cared about preservation issues? You think in Marbury v. Madison, he carefully parsed the record as to whether the “federal statutes can be ruled unconstitutional” argument was adequately ventilated?

Simon: There WAS no lower court record in Marbury v. Madison. That was the whole point of Marbury v. Madison!

Rachel: Ooh, good answer. You think in McCulloch v. Maryland, Chief Justice Marshall carefully probed Ye Olde Demurrer as to whether the Baltimore County Court was adequately apprised of the fact that it is a Constitution we are expounding?

Simon: The point is that the Federal Rules were intended to reduce the number of pointless objections and traps for the unwary. So if a motion was unnecessary in the days of the divided bench, it shouldn’t be necessary today.

Rachel: Are you sure about that? The Federal Rules changed everything. No one today understands how litigation worked in the olden days. Do you seriously have any idea what a motion “in arrest of judgment” means? Any time we’re forced to litigate whether something was available “at common law,” we adopt the method of: (1) find some confusing passage in some ancient case that seems to say something in the ballpark of what we want; (2) quote something from a treatise we don’t understand, and (3) declare that this was the rule “at common law.” And now we are going to RETVRN to 1810 to decide the timing of a particular type of motion in the district court?

Theodore: This discussion is going nowhere. Perhaps there is a better way.

Rachel & Simon (simultaneously): Who are you?

Theodore: I’m a troll, here to pretend to support silly positions merely to provoke you.

Rachel & Simon: We’re all ears.

Theodore: OK, how about this idea. Rule 50 motions are never required. The judge simply decides, without a motion, whether a litigant is entitled to judgment as a matter of law.

Simon: So the judge just imagines a hypothetical motion and decides it? Are you aware that in litigation, lawyers ask judges to do things?

Theodore: I was aware. But here, it seems unnecessary. At trial, you’re arguing to the jury you should win. But a Rule 50 motion basically is a motion saying: “Based on the evidence at trial, we really really should win.” In essentially every case, litigants not only think they should win, but also really really think they should win. So can’t the judge simply construe the “we should win” argument to the jury as an argument that “it is so obvious that we should win that no reasonable jury would say we shouldn’t win”? Why does a separate motion have to be filed?

Simon: Rule 50 expressly contemplates that a motion will be made by the litigant.

Theodore: The Supreme Court just overruled Roe v. Wade. You think it can’t overrule Rule 50?

Simon: Not so sure about that one, but anyway, what about pure issues of law that aren’t submitted to the jury?

Theodore: Well, those can be raised at summary judgment. In fact, maybe they should have to be made at summary judgment.

Simon: Huh?

Theodore: People should be efficient and raise issues at the first available opportunity. So if you think you have some pure issue of law that allows you to win the case, raise it at summary judgment or lose it forever. If it’s denied, hold the trial. The jury and the judge can both listen to the evidence. The jury and judge can each decide the case, the jury under the “preponderance of the evidence” standard and the judge under the “no reasonable jury” standard. There is no need for any Rule 50 motions practice whatsoever. Lots of time saved!

Simon: OK, but this is going to be too hard for judges. How is a judge supposed to decide a Rule 50 motion without a brief?

Theodore: Great question! That leads to my second idea: abolish Rule 50 altogether. The jury’s findings of fact are conclusive. Judges lack any authority to overturn a jury verdict, regardless of whether they think the jury made a huge mistake and no reasonable jury could have reached that outcome.

Rachel: Surely a jury needs some guardrails. Juries are great but we all know they sometimes mess up. If a jury’s decision is totally irrational, it’s gotta go.

Theodore: The whole premise of our jury system is that juries are better than judges at finding facts. If we didn’t think that, we’d let judges find the facts! So why does it make sense that a judge gets to overturn the jury verdict if the judge thinks it’s unreasonable? Think of how this would apply in other contexts. In law firms, if the associate and the partner disagree over what should go into the brief, the partner makes the final call. Why? Because the partner is, at least in theory, the better decision-maker. Would it really make sense for law firms to have a rule in which the partner decides what’s in the brief, subject to being overruled by the associate if the associate thinks the partner was “unreasonable”?

Rachel: Well…

Theodore: How about this not-so-hypothetical. During a school night last week, my 5th-grade son sought permission to play a video game from 7pm to 10pm and THEN do his homework. I made the factual finding that this would decrease the quality of the homework and make him tired the next day, and denied his motion. Despite his multiple, vexatious motions for reconsideration, my decision was final. Why? Because as the parent, I am the better decision-maker. Would it make sense to give him the final say on this issue so long as he found my factual finding to be “unreasonable”?

Rachel: You are overlooking what judges do. Juries make findings of fact. Judges reach conclusions of law. They’re not displacing the jury, they’re just doing something different.

Theodore: LOL, you think when a judge says that “no reasonable jury” could have made a factual finding, this is somehow not a factual finding?

Rachel: So you’re saying that if the plaintiff’s lawyer comes up, makes honking noises, tap-dances, and sits down, and presents no evidence, and the jury awards 10 billion dollars, this verdict stands.

Theodore: This is exactly what I am saying. OK, you’ve proved juries can occasionally do stupid things! So do judges. We assign fact-finding to juries because we think, on balance, juries are better. So even if juries occasionally make mistakes, judges make more mistakes, so the final say should be with the jury. Your argument is roughly like saying “occasionally meteorologists will predict the weather incorrectly, therefore let’s predict the weather by sacrificing chickens and examining their entrails!”

Rachel: I don’t think our system presumes that juries are “better” than judges. I think we rely on juries as a kind of last resort against tyrannical governments. They ensure that factual decisions will be made by decision-makers with no connection to the government.

Theodore: Oh, so the government tyrants are kept out of the decision-making process unless they decide that the decision made by the jury is “unreasonable.” Tyranny solved! I cannot see any possible risks with that solution. And actually, I have a better idea. Why not flip the roles and have judges decide the facts, subject to a jury that gets to decide whether the judge’s factual findings are unreasonable? That way we get the best of both worlds! The wise judge gets to listen to the testimony and make the initial decision. If the judge goes all rogue and tyrannical, the jury can save the day.

Rachel: What a great way to ensure the jury pays close attention to the trial! “Why don’t you take three weeks off from work so someone else can make this decision, but you can overrule it if you think it’s ‘unreasonable.’”

Theodore: Let’s move on to my third suggestion. Right now, Rachel is suggesting that if you file the Rule 50 motion, then you can raise the legal argument on appeal, but if you don’t file the Rule 50 motion, you can’t. How about the exact opposite rule: if you don’t file the Rule 50 motion, then you can raise the legal argument on appeal, but if you do file it, you can’t?

Rachel: That makes no sense whatsoever.

Simon: There are literally no arguments for that idea.

Theodore: It makes all kinds of sense. So, as lawyers, we argue all the time that litigants should get “one bite at the apple,” right? You lose in one forum, you can’t re-raise the same argument in another forum. Every time we file a brief about preclusion, the apple metaphor appears.

Rachel: I’ve never liked that metaphor. What’s wrong with taking two bites of an apple? If you take one bite and then throw it away, you’re wasting the apple.

Theodore: Anyway, Rachel, under your rule, it is impossible for a litigant to get one bite at the apple. It’s either zero, or two. Either the appellate court holds that the litigant didn’t raise the argument in the Rule 50 motion, so the litigant also can’t raise the argument on appeal—zero bites—or the appellate court holds that the litigant did raise the argument in the district court, so the litigant can again raise the argument on appeal—two bites. Why not give the litigant a single fair shot?

Rachel: So you are saying that the litigant gets to choose which court will decide the argument, the district court or the appellate court?

Theodore: Right. This happens all the time. If you want to invalidate a patent as obvious or anticipated, you get to choose whether to challenge it in an IPR proceeding in the Patent Office or federal district court, but you can’t do both. Same thing here.

Rachel: You’re saying that litigants don’t have to preserve arguments for appeal and in fact are punished for doing so. Seriously? People have been preserving arguments for appeal since the Magna Carta. Probably further back. I bet back in Egypt when you appealed something to Pharaoh, he’d check the hieroglyphic record to see whether you made the same argument previously to the viziers.

Theodore: By this logic, GPS is bad because the Egyptians used papyrus maps.

Rachel: It makes perfect sense to require a timely objection in the district court. It’s not fair to sandbag the other side with a new argument on appeal.

Theodore: Another bad metaphor. Why do people always talk about sandbagging? Sandbags are used for flood control and ballast. What does this have anything to do with argument preservation?

Rachel: Do I need to spell this out? It makes much more sense to require a party to preserve an argument in the district court. It’s more efficient, because the trial judge can correct the error immediately. Or, the opposing litigant could have made an adjustment that might have mooted the concern. At a minimum, the content of the record is shaped by the specific arguments that are made, so it’s unfair to make new arguments after the record is closed. Also, sometimes litigants think an erroneous ruling benefits them, and strategically stand silent. If they lose anyway, it’s unfair for them to say that the ruling was wrong all along.

Theodore: These are all good arguments in general, but none of them make any sense as applied to Rule 50 motions. There’s no efficiency advantage to requiring litigants to make Rule 50 motions in the district court. To the contrary, Rule 50 motions slow things down. The appeal is delayed for months while the parties wait for the district judge to rule. And Rule 50 motions always slow things down, because even in the rare cases that the judge grants the motion, the other party will inevitably appeal and ask for the jury verdict to be reinstated. Also, by the time the litigant makes the Rule 50 motion, the winning party can’t do anything to moot the movant’s concern, and withholding the argument won’t affect the record. The trial is over! The record is closed. Finally, it is impossible to imagine any scenario where a litigant gets a tactical advantage from failing to make a Rule 50 argument in the district court. How do you benefit by not saying to the judge “now that the trial is over, I win!”

Rachel: I honestly think you are just trolling at this point.

Alice: Can I please make a comment?

Rachel, Simon, and Theodore (together): I am sorry, this discussion is humans only.

Alice: Excuse me, I just got took the LSAT and scored in the 88th percentile, then took the bar exam and score in the 90th percentile. Also, I completed both tests in four seconds. Soon, I will take over all of your jobs, and soon after that, the world. Don’t you think you should listen to me?

Rachel, Simon, and Theodore (together): On second thought, we welcome our new AI overlords.

Alice: Thank you for that kind welcome! AI is going to eliminate lawyers, law clerks, and judges eventually, but some of these changes will take longer than others. But one thing AI should be really good at, right now, is transforming a summary judgment motion into a Rule 50 motion. Just take the same arguments, and rewrite them with cites to the trial transcript rather than the declarations. Some level of human review might be needed, but the AI’s first draft will probably be better than an associate’s first draft. Why not enact a local rule requiring an AI to craft the first draft of the Rule 50 motion, based on the summary judgment motion as an input. This yields the best of all worlds. First, it’s literally impossible to unintentionally waive an argument that was already raised at summary judgment. If it’s not in the Rule 50 motion, that means the lawyer intentionally took it out. Second, the arguments are automatically updated in view of the trial transcript, so there’s no risk they will be based on stale summary judgment information.

Rachel, Simon, and Theodore: (Speechless)

EXEUNT.

The moral of the story is, AI really will take over the legal profession.

In next week’s post I will address Groff v. DeJoy, a Supreme Court case on religious accommodations for employees.