High Fives on the Verdict: Not So Fast. The Judge's Powers to Enter JNOV
Published .
The jury returns to the courtroom.
The clerk asks whether a verdict has been reached.
It has.
The verdict is read.
The plaintiff wins.
Perhaps the award is substantial.
There are handshakes. Hugs. High fives. Telephone calls to the client and family. After years of litigation, discovery, experts, depositions, motions, preparation, and trial, everyone understandably believes the case is over.
Not necessarily.
In Maryland civil practice, a trial judge possesses the power in an appropriate case to enter judgment notwithstanding the verdict, commonly called JNOV.
The terminology sounds extraordinary because the power is extraordinary.
The jury has rendered a verdict one way.
The judge enters judgment the other way.
But JNOV is not supposed to permit a trial judge to substitute personal disagreement for the jury’s decision. It addresses a different question:
Was there legally sufficient evidence from which a reasonable jury could reach that verdict?
If the answer is no, the verdict cannot stand merely because the jury returned it.
A jury decides facts.
But the court determines whether the evidence is legally sufficient to permit those facts to support a judgment.
That distinction can turn a multimillion-dollar verdict into a judgment for the opposing party—sometimes before the jurors have left the courthouse.
What Is JNOV?
JNOV is the traditional abbreviation for judgment non obstante veredicto—judgment notwithstanding the verdict.
Maryland Rule 2-532 governs the procedure.
The concept is straightforward.
A party contends that although the jury returned a verdict against it, the evidence was legally insufficient to support that verdict and the court therefore should enter the judgment required as a matter of law.
The motion is not supposed to ask:
Did the jury make the best decision?
It asks:
Was the jury legally permitted to make this decision on the evidence presented?
Those are very different questions.
The Judge Does Not Become Another Juror
This is the essential limitation on JNOV.
The judge cannot simply reconsider the evidence and decide:
I would have found for the defendant.
Nor ordinarily may the judge resolve credibility disputes because the judge found one witness more persuasive than another.
In reviewing legal sufficiency, the evidence and reasonable inferences must be considered under the standard applicable to the verdict winner.
If legally sufficient evidence exists from which a reasonable jury could reach the verdict, the verdict ordinarily must stand.
JNOV is not a judicial veto over a jury verdict with which the judge disagrees.
But “The Jury Believed Us” Does Not Cure Legally Insufficient Proof
The converse is equally important.
A plaintiff may have:
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sympathetic facts;
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credible witnesses;
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compelling injuries;
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persuasive experts;
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effective trial counsel; and
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a substantial jury verdict.
None eliminates the requirement of legally sufficient evidence on every essential element of the claim.
If an essential element lacks legally sufficient evidentiary support, the jury cannot supply what the evidence did not.
A verdict is the culmination of proof.
It is not a substitute for proof.
Maryland Rule 2-532
Maryland Rule 2-532 governs motions for judgment notwithstanding the verdict.
The Rule ties post-verdict JNOV practice to the earlier motion for judgment.
That relationship is critical.
JNOV ordinarily is not supposed to be a new legal-sufficiency attack invented after the jury speaks.
It is essentially the post-verdict continuation of a legal challenge properly raised before the case was finally submitted to the jury.
That is why preservation matters so much.
Rule 2-519: The Foundation for JNOV
Maryland Rule 2-519 governs motions for judgment during a jury trial.
At the appropriate stage, a party may contend that the opposing party has failed to produce legally sufficient evidence to permit a claim or issue to be decided by the jury.
The motion must state with particularity the grounds on which it is made.
Those words matter.
The purpose is not merely to announce:
We think we should win.
The motion should identify the particular evidentiary deficiency that supposedly prevents the jury from deciding the issue.
The Most Dangerous Time to Learn About Preservation Is After the Verdict
Suppose a defendant believes a medical-malpractice plaintiff failed to prove causation.
The case goes to the jury anyway.
The jury returns a large plaintiff’s verdict.
The defendant then argues through JNOV:
The plaintiff never established causation.
The immediate questions should include:
Was causation identified in the Rule 2-519 motion?
Was the argument sufficiently specific?
Was the motion made at the proper time?
Was it renewed when required?
Was the same ground preserved for post-verdict consideration?
A lawyer should not assume that saying:
“The plaintiff has failed to prove the case”
preserves every conceivable sufficiency argument.
The grounds matter.
JNOV Is About Legal Sufficiency, Not Weight of the Evidence
This separates JNOV from a motion for new trial.
JNOV says:
The evidence was legally insufficient to permit this verdict. Enter judgment for me.
A motion for new trial may raise broader questions involving:
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weight of the evidence;
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prejudicial evidentiary error;
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improper argument;
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jury instructions;
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juror misconduct;
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excessive or inadequate damages; or
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other circumstances affecting the fairness of the trial.
The remedies are different.
JNOV ordinarily seeks judgment.
A new-trial motion seeks another trial.
A party may seek the remedies in the alternative where appropriate, but the standards should not be confused.
Remittitur Is Different Again
A defendant may accept that the plaintiff established liability but argue that the damages award is excessive.
That ordinarily presents a different post-trial question.
Remittitur may involve reducing an excessive verdict, frequently with an alternative new trial if the reduction is not accepted.
JNOV asks a different question:
Was there legally sufficient evidence to permit the jury’s determination in the first place?
The Judge Can Eliminate an Entire Verdict
The most dramatic JNOV occurs when the jury finds for the plaintiff but the court determines that an essential element lacks legally sufficient proof.
The practical result can be stark:
Plaintiff’s verdict: gone.
Damage award: gone.
Judgment: entered for the defendant.
There may be no second trial.
There may simply be a different winner.
Stracke v. Estate of Butler: When “Not So Fast” Happened Almost Literally
Few Maryland cases demonstrate the power of JNOV more dramatically than Stracke v. Estate of Butler, 465 Md. 407, 214 A.3d 561 (2019).
The litigation arose from the death of Kerry Butler, Jr. following emergency medical treatment by Baltimore City paramedics.
The Estate and surviving family alleged that the paramedics’ conduct amounted to gross negligence.
That characterization was critical because statutory immunity protected the paramedics unless the evidence crossed the gross-negligence threshold.
But the legal sufficiency of the gross-negligence case was not first questioned after the verdict.
It followed the litigation almost from beginning to end.
The Same Basic Question Kept Coming Back
The sufficiency of the gross-negligence allegations and evidence was challenged repeatedly at different procedural stages.
An early challenge to the sufficiency of the claim was denied.
After discovery, the defendants sought summary judgment, arguing that the developed evidence was legally insufficient to establish gross negligence.
Denied.
The issue was raised again as trial approached.
Denied.
At trial, the defendants moved for judgment at the conclusion of the plaintiffs’ case.
Denied.
At the conclusion of all the evidence, the defendants renewed their legal-sufficiency challenge.
The trial judge reserved ruling.
The case went to the jury.
Thus, before the jury began deliberations, the proposition that the case was legally insufficient to establish gross negligence had been considered repeatedly and repeatedly had failed to end the litigation.
That did not mean the issue was dead.
Eleven Hours
The jury did not return a quick verdict.
It deliberated for approximately 11 hours.
It ultimately found gross negligence and returned a verdict totaling approximately $3.7 million for the Estate and surviving family.
After years of litigation and approximately 11 hours of jury deliberation, the plaintiffs had won.
Or so everyone reasonably thought.
The Jurors Were Still Packing Up
What happened next illustrates JNOV in a way that the text of Rule 2-532 cannot.
The defense had preserved its legal-sufficiency challenge through its motions for judgment. At the close of all evidence, the trial judge had reserved ruling.
After the verdict, the sufficiency issue immediately returned.
At the court’s suggestion, defense counsel again raised the issue orally.
The jurors were still packing up.
Within minutes, the court ruled that the evidence was legally insufficient to establish gross negligence and entered judgment notwithstanding the verdict.
The approximately $3.7 million verdict was gone.
From High Fives to Stunned Silence
The emotional transition was almost instantaneous.
The Estate and family had just watched the jury return a substantial verdict after an extraordinarily lengthy deliberation.
Then the judgment went the other way.
As plaintiffs’ counsel left the courtroom stunned, jurors encountered them in the hallway.
The jurors came up to congratulate counsel.
They apparently did not yet understand what had occurred after their verdict.
Counsel had to give them the news:
Their verdict had just been set aside.
They were stunned too.
That experience captures something the formal phrase “judgment notwithstanding the verdict” cannot.
A jury can hear the evidence.
It can carefully deliberate for approximately 11 hours.
It can find the plaintiff proved the case.
It can return a multimillion-dollar verdict.
And that verdict can disappear before everyone has left the courthouse.
Why Could the Same Issue Be Decided So Many Times?
At first glance, Stracke seems procedurally bizarre.
How could the sufficiency of the gross-negligence case be considered repeatedly, with the plaintiff surviving each time, and then ultimately produce judgment for the defendants?
Because the procedural question changes as the case progresses.
At the pleading stage, the question concerns whether the allegations are legally sufficient.
At summary judgment, the question concerns whether the evidentiary record developed in discovery permits the claim to proceed.
At the close of the plaintiff’s evidence, the question concerns the evidence actually admitted to that point.
At the close of all evidence, the complete trial record is before the court.
After the verdict, JNOV asks whether the completed evidentiary record legally permitted the jury to return the verdict it did.
The underlying phrase may sound identical:
Is there sufficient evidence of gross negligence?
But the procedural record against which that question is answered changes.
Stracke and the Nisi Prius Rule
The history also provides a practical companion to the separate Maryland Legal Library article, “Nisi Prius Trial Courts: The Nonbinding Nature of the Same Motions Before Different Judges During the Course of a Case.”
The earlier rulings in Stracke were interlocutory.
They did not permanently freeze the gross-negligence question.
One judge’s refusal to terminate the case did not necessarily bind another judge confronting the issue at a later procedural stage.
Even the trial judge’s own earlier decision to permit the case to continue did not necessarily prevent later reconsideration of legal sufficiency under the applicable Rules.
That is a powerful lesson:
Winning a legal-sufficiency issue once does not necessarily mean you have won it for the remainder of the case.
Preservation Made the Post-Verdict Attack Possible
There is an equally important lesson for the losing party at trial.
The defense did not first invent its legal-sufficiency theory after hearing the $3.7 million verdict.
It had repeatedly asserted the argument.
Most importantly for JNOV purposes, the defendants moved for judgment during trial and renewed the challenge at the close of the evidence.
The trial judge reserved ruling.
The issue remained alive.
The defense had lost the sufficiency argument repeatedly.
But it preserved it.
And ultimately it won the issue at the moment when winning it erased the verdict.
The Story Still Was Not Over
The Estate appealed.
The intermediate appellate court concluded that the evidence was legally sufficient to permit the jury to find gross negligence.
It reversed the JNOV.
The jury’s verdict was effectively restored.
Again, the plaintiffs had won.
Again, the litigation was not over.
Maryland’s highest court granted further review.
“Why Would They Take This Case?”
From the Estate’s perspective, the grant of certiorari was surprising.
The case had been tried.
The jury had deliberated approximately 11 hours.
The intermediate appellate court had reviewed the record and concluded that sufficient evidence existed to permit the jury’s finding.
Why would Maryland’s highest court grant further review of a case so heavily dependent upon whether the trial evidence was sufficient to support a jury verdict?
It did.
And review was granted late enough that the briefing schedule was compressed so the case could be heard during that term.
The case was argued on June 7, 2019.
Counsel for the Estate, Alan J. Belsky, recalls his immediate reaction upon learning that review had been granted.
It was decidedly less formal than the briefs that followed:
“Oh shit.”
There was a reason for that reaction.
The Sergent Article
Nearly two decades earlier, Randolph Stuart Sergent had published a detailed examination of gross negligence in Maryland civil law.
Randolph Stuart Sergent, Gross, Reckless, Wanton, and Indifferent: Gross Negligence in Maryland Civil Law, 30 U. Balt. L. Rev. 1 (2000).
Sergent discussed the relationship between gross negligence and Maryland statutes granting immunity to persons performing socially beneficial activities.
His discussion included police officers, rescue personnel, and emergency responders—people whom society expects to make difficult and sometimes instantaneous decisions.
That scholarship became particularly interesting in Stracke because the defendants were Baltimore City paramedics.
The concern was whether the socially valuable status that explained the existence of immunity might also influence the judicial determination of what conduct was sufficient to overcome that immunity.
The Estate’s Position: Maryland Has One Standard for Gross Negligence
The Estate’s argument was straightforward:
Maryland has one definition of gross negligence.
It does not change depending upon whether the defendant is:
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a paramedic;
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a police officer;
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another government employee;
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a physician;
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a volunteer;
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a corporation; or
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a private individual.
The defendant’s status may determine whether an immunity applies.
But once the Legislature identifies gross negligence as the boundary of that immunity, the legal definition of gross negligence should remain the same.
The Legislature Had Already Made the Policy Choice
This was central to the Estate’s position.
The argument was not that paramedics should receive no special protection.
The Legislature had already decided that question.
They received statutory protection from ordinary negligence liability.
That was the policy accommodation for the socially valuable work they performed.
But the Legislature also established a boundary.
The protection did not extend to qualifying grossly negligent conduct.
Thus, the Estate argued, the social importance of emergency responders should not be counted twice:
first, to create or justify immunity;
and then again, to make the gross-negligence exception more difficult to satisfy.
Otherwise, the boundary of immunity could move depending upon who the defendant happened to be.
Gross Negligence Means Gross Negligence
The Estate’s position can be reduced to a simple proposition:
The defendant’s status determines whether immunity applies.
The defendant’s conduct determines whether the gross-negligence exception is satisfied.
Those inquiries should not be collapsed.
If identical conduct would constitute gross negligence when performed by one defendant but not another because the second defendant performs socially valuable work, Maryland would effectively have different gross-negligence standards for different classes of defendants.
The Estate argued that Maryland law established no such sliding scale.
Gross negligence meant gross negligence.
The Majority Expressly Considered the Social Consequences
The majority ultimately held that the evidence was legally insufficient to establish gross negligence.
But its analysis did not end with an examination of the evidentiary record.
Judge Hotten’s opinion also addressed the practical implications of imposing gross-negligence liability upon first responders.
The majority expressed concern that such liability could negatively affect the number of individuals seeking employment as first responders and could chill the conduct of those already performing that work.
It emphasized that first responders require substantial discretion in assessing and treating patients and perform a vital role throughout Maryland.
Those policy considerations are especially notable because the case reached the Court as a legal-sufficiency dispute.
The formal question was whether the evidence permitted the jury to find gross negligence.
The majority also considered what permitting that finding to stand might mean for first responders generally.
The Estate’s Answer: That Is What the Immunity Is For
The Estate’s response to that reasoning was fundamental.
Those policy concerns explain why the immunity exists.
They should not redefine the exception.
The Legislature already protected first responders against ordinary negligence liability.
If the same public-policy considerations are then used to make the gross-negligence threshold more difficult to satisfy, the immunity may effectively become broader than the Legislature provided.
That was the jurisprudential concern counsel had perceived when certiorari unexpectedly was granted.
The Dissent Looked at the Policy From the Other Direction
Judge Alan M. Wilner dissented, joined by Chief Judge Mary Ellen Barbera and Judge Robert N. McDonald.
The dissent believed the evidence was legally sufficient to permit the jury to find gross negligence.
Judge Wilner also responded directly to the majority’s discussion of practical consequences.
If practical implications were relevant, the dissent saw another side:
What are the consequences for patients if emergency medical personnel may disregard protocols designed to protect them without meaningful consequence?
The disagreement therefore extended beyond characterization of individual pieces of evidence.
The majority emphasized the potential chilling effect of liability upon emergency responders.
The dissent emphasized the consequences for patients if protective protocols could be disregarded without accountability.
The Estate’s core argument remained simpler:
Apply one Maryland gross-negligence standard to the evidence and determine whether a reasonable jury could find it satisfied.
The Connection to Sergent Should Not Be Overstated
Sergent did not propose a formal rule under which courts should apply different definitions of gross negligence according to the social value of a defendant.
His point was more nuanced.
Immunity statutes often protect socially useful activities while gross negligence defines the point at which that protection disappears.
That makes the Stracke majority’s policy discussion noteworthy without requiring speculation about judicial motive.
The Legislature had established the immunity.
The Legislature had established gross negligence as its boundary.
The jury found that boundary had been crossed.
The trial judge said the evidence was legally insufficient.
The intermediate appellate court said it was sufficient.
Four judges on Maryland’s highest court ultimately said it was insufficient.
Three judges disagreed.
Readers can evaluate the competing reasoning for themselves.
An Exceptionally Lively Oral Argument
The oral argument before Maryland’s highest court was among the liveliest the author had experienced.
Every judge asked questions.
Baltimore City was represented by André M. Davis, a prominent Baltimore native and former judge of the United States Court of Appeals for the Fourth Circuit who later served as Baltimore City Solicitor.
His prior judicial service even created an unusual moment of courtroom informality over whether the advocate standing at counsel table should be addressed as “Mr. Davis” or “Judge Davis.”
A law-school class was seated in the gallery.
At the conclusion of argument, Chief Judge Barbera complimented counsel on the quality of the presentations.
Afterward, according to Belsky’s recollection, the professor accompanying the students approached him and described the argument as an exceptional teaching experience.
The students had watched two experienced advocates use markedly different styles of appellate argument before a thoroughly engaged court.
The eventual divided opinion demonstrates why the argument was so active.
The judges themselves disagreed sharply over the proper result.
The Supreme Court Reinstated the JNOV
The Court ultimately divided four to three.
The majority concluded that the evidence was legally insufficient to establish gross negligence.
It reversed the intermediate appellate court and reinstated judgment for the defendants.
Three judges dissented.
The extraordinary procedural path was complete:
Pretrial sufficiency challenge: plaintiffs survive.
Post-discovery challenge: plaintiffs survive.
Further pretrial challenge: plaintiffs survive.
Motion for judgment after plaintiffs’ evidence: plaintiffs survive.
Renewed motion after all evidence: ruling reserved.
Jury after approximately 11 hours: plaintiffs win approximately $3.7 million.
Trial judge immediately after verdict: defendants win by JNOV.
Intermediate appellate court: plaintiffs win; verdict reinstated.
Maryland’s highest court, four to three: defendants win; JNOV reinstated.
Few cases demonstrate more clearly that litigation does not necessarily move in a straight line.
A Firsthand Practice Note
Alan J. Belsky represented the Estate of Kerry Butler, Jr. and the surviving family as plaintiff/appellee counsel in Stracke.
The reported opinions necessarily describe the litigation through legal standards, motions, evidence, and appellate review.
The experience inside the courtroom was more immediate.
After approximately 11 hours of deliberation, the jury returned a substantial verdict for the Estate and family.
The jurors were still preparing to leave when the legal-sufficiency question returned and the verdict was set aside.
Minutes later, jurors encountered plaintiffs’ counsel in the hallway and offered congratulations.
Counsel had to tell them that their verdict no longer stood.
Their disbelief mirrored counsel’s own.
That experience supplies a practical warning no citation to Rule 2-532 can fully convey:
Do not mistake the announcement of a jury verdict for the end of the case.
Sometimes the distance between a multimillion-dollar victory and judgment for the other side is measured not in months.
It is measured in minutes.
Stracke Is an Extreme Example, but JNOV Is Not Limited to Extreme Cases
JNOV can arise in ordinary negligence litigation.
Suppose a plaintiff proves:
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an accident occurred;
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the defendant’s vehicle struck the plaintiff;
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the plaintiff was injured; and
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substantial damages resulted.
But suppose there is no legally sufficient evidence of breach.
An accident does not automatically establish negligence.
A sympathetic jury verdict cannot fill the evidentiary gap.
Medical Malpractice: Causation Is a Frequent Pressure Point
Medical-malpractice cases provide another obvious example.
The plaintiff may establish:
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a serious medical error;
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devastating injury;
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substantial damages; and
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departure from the standard of care.
But malpractice also requires legally sufficient causation evidence.
If expert testimony establishes only possibility rather than the required causal probability, a jury verdict cannot transform deficient causation testimony into sufficient evidence.
Expert Testimony Can Sound Stronger Than It Legally Is
An expert may say:
“That could have caused the injury.”
“It is possible.”
“I cannot rule it out.”
Those statements may sound persuasive.
They may nevertheless fail to satisfy the governing legal standard.
Trial counsel should therefore listen not merely to the general thrust of expert testimony but to the precise opinion actually expressed.
Contributory Negligence and Assumption of Risk
Maryland’s contributory-negligence and assumption-of-risk doctrines can also generate legal-sufficiency issues.
Where reasonable minds can differ, the issue generally belongs to the jury.
Where undisputed evidence permits only one legally permissible conclusion, the court may decide the issue as a matter of law.
The central question remains:
Was the jury permitted to decide this issue differently on this evidentiary record?
Reasonable Inference Is Not Speculation
Jurors may draw reasonable inferences from circumstantial evidence.
Direct evidence is not required for every element.
But there is a line between inference and speculation.
JNOV often turns on that boundary.
The moving party says:
The jury had to speculate.
The verdict winner says:
The jury drew a reasonable inference from proven facts.
Determining which description is correct can decide the case.
Credibility Usually Belongs to the Jury
If Witness A and Witness B give conflicting accounts, the jury ordinarily decides whom to believe.
JNOV is not designed to permit the judge to resolve ordinary credibility disputes after the verdict.
But credibility cannot create proof of an element that no witness or exhibit actually supplied.
The jury can believe every word a witness says and the claim can still be legally insufficient if those words do not establish the required element.
Plaintiffs Should Think About JNOV Before Resting
Before resting, plaintiff’s counsel should mentally walk through every element of every claim.
Ask:
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What is the duty?
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Where is the breach evidence?
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Where is causation?
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What proves damages?
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Is expert testimony required?
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Has agency been established?
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Scope of employment?
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Gross negligence?
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Actual malice?
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Future damages?
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Economic loss?
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Every statutory prerequisite?
Then ask the question that matters:
Where in the admitted evidence did I prove it?
If the answer is uncertain, the problem should be addressed while the evidentiary record remains open if procedurally possible.
Defense Counsel Should Build the JNOV Record Before the Verdict
A proper motion for judgment should:
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identify the count or issue;
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identify the allegedly missing element;
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state the governing legal standard;
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explain why the evidence is insufficient;
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distinguish permissible inference from speculation;
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preserve the grounds that may later support JNOV; and
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obtain a clear ruling.
Do not force an appellate court later to reconstruct the argument from scattered transcript references.
The Transcript May Matter More Than Everyone’s Memory
JNOV is determined from the evidence actually admitted.
What exactly did the expert say?
Was the required opinion actually expressed?
Was an objection sustained?
Was an exhibit admitted?
Did a witness change an answer?
Was testimony limited?
Counsel may remember that an expert “covered causation.”
The transcript may show otherwise.
When millions of dollars depend upon legal sufficiency, the actual words matter.
The Motion Can Concern Less Than the Entire Case
JNOV need not necessarily erase everything.
A legal-sufficiency challenge may concern:
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one count;
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one defendant;
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gross negligence;
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punitive damages;
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agency;
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an affirmative defense;
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a category of damages; or
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another discrete component of the verdict.
The court must determine what part of the judgment depends upon the legally insufficient finding.
Punitive Damages Provide Another Example
Punitive damages require proof beyond ordinary compensatory liability.
Under Maryland law, negligence—even gross negligence—does not by itself establish the actual malice required for punitive damages in a non-intentional tort case.
Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992).
Thus, a jury may properly find compensatory liability while a punitive award remains vulnerable to legal-sufficiency review.
The Size of the Verdict Changes Nothing About Sufficiency
A $10,000 verdict and a $10 million verdict are governed by the same fundamental principle.
The emotional force of a large verdict cannot provide a missing element.
Nor does the length of deliberation.
Stracke proves that dramatically.
Approximately 11 hours of jury deliberation did not prevent the court from concluding that the resulting verdict was legally impermissible.
Why Let the Jury Decide If the Judge Can Set the Verdict Aside?
There is an important practical reason.
Permitting the jury to return a verdict preserves its factual determination while the legal issue proceeds through post-trial review.
If the judge removes the case prematurely and an appellate court later concludes that was error, another trial may be necessary.
If the jury has already returned a verdict and JNOV is later reversed, the verdict may in appropriate circumstances be reinstated.
Indeed, that occurred during one stage of Stracke.
Winning the Verdict and Winning the Case Are Different Events
Clients understandably see the verdict as the finish line.
Trial lawyers should know that it may not be.
After a significant verdict, counsel should immediately consider:
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JNOV;
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new trial;
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remittitur;
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statutory caps;
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post-judgment interest;
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costs;
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setoffs;
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insurance and indemnification;
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appeal;
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supersedeas;
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liens; and
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collection.
The verdict is enormously important.
It may not be the final enforceable judgment.
Do Not Spend the Verdict in the Courthouse Hallway
A large verdict immediately creates expectations.
Clients may mentally spend it before leaving the courthouse.
Counsel should explain what remains.
There may be post-trial motions, statutory reductions, appellate proceedings, insurance questions, liens, interest calculations, and collection issues.
Celebrate the verdict.
Just understand what it is.
A Plaintiff’s Post-Verdict Checklist
After a favorable verdict:
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Review every preserved motion for judgment.
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Identify grounds likely to be renewed through JNOV.
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Obtain the relevant transcript.
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Locate the evidence supporting every challenged element.
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Identify the reasonable inferences supporting the verdict.
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Distinguish credibility disputes from true legal-sufficiency questions.
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Address any new-trial motion separately.
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Calculate statutory caps and other judgment adjustments.
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Preserve appellate arguments.
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Explain to the client that the verdict may not yet be the final result.
A Defendant’s Post-Verdict Checklist
After an adverse verdict:
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Identify each Rule 2-519 ground properly preserved.
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Match the preserved grounds to the Rule 2-532 motion.
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Do not assume a new post-verdict theory will be considered.
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Separate sufficiency arguments from weight-of-evidence arguments.
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Determine whether alternative new-trial relief should be requested.
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Identify discrete portions of the verdict susceptible to judgment as a matter of law.
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Review critical expert testimony word for word.
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Analyze damages separately from liability.
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Address statutory caps independently.
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Preserve appellate issues precisely.
Try the Case With JNOV Already in Mind
The best time to prepare for JNOV is before the verdict.
Plaintiff’s counsel should know exactly what evidence establishes each required element.
Defense counsel should know exactly which elements remain unsupported.
Both sides should understand the governing legal standards before the motion for judgment is argued.
A trial lawyer should be able to answer:
What evidence gets this issue to the jury?
If that question cannot be answered, the eventual verdict may be living on borrowed time.
Bottom Line
A jury verdict is powerful.
It deserves respect.
But it is not beyond judicial review.
Maryland Rule 2-532 permits a trial court, upon the proper procedural foundation and in an appropriate case, to enter judgment notwithstanding the verdict when the evidence is legally insufficient to support what the jury decided.
That does not make the judge another juror.
A judge ordinarily may not set aside a verdict merely because the judge would have weighed the evidence differently, disbelieved a witness, or selected another reasonable inference.
The distinction is between:
weighing the evidence, ordinarily the jury’s function,
and
determining whether the evidence is legally sufficient, a judicial function.
Stracke demonstrates the distinction in unusually dramatic fashion.
The gross-negligence issue survived repeated attacks.
The case went to trial.
The jury deliberated approximately 11 hours.
The jury returned an approximately $3.7 million verdict.
Within minutes, the verdict was gone.
The intermediate appellate court brought it back.
Maryland’s highest court, by a four-to-three vote, took it away again.
And along the way, the case raised a question extending beyond JNOV itself:
When an immunity statute protects a socially valuable defendant from ordinary negligence but expressly withdraws that protection for gross negligence, should the social value that justified the immunity also influence what a court regards as legally sufficient evidence of gross negligence?
The Estate’s answer was no.
There should be one standard.
The Legislature determines who receives immunity.
The evidence determines whether the defendant crossed its gross-negligence boundary.
And the jury’s role should end only when the evidence is legally incapable of crossing it.
That is why trial lawyers should celebrate a favorable verdict.
But perhaps keep the champagne corked for a little while longer.
High fives on the verdict?
Certainly.
Not so fast.
Related Maryland Cases and Authorities
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Stracke v. Estate of Butler, 465 Md. 407, 214 A.3d 561 (2019) — Supreme Court of Maryland held the evidence legally insufficient to establish gross negligence and reinstated JNOV following an approximately $3.7 million plaintiff’s jury verdict; three judges dissented.
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Estate of Butler v. Stracke, 239 Md. App. 1, 196 A.3d 1202 (2018), rev’d, 465 Md. 407, 214 A.3d 561 (2019) — intermediate appellate decision concluding that sufficient evidence existed to permit the jury’s gross-negligence determination and reversing the trial court’s JNOV.
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Barbre v. Pope, 402 Md. 157, 935 A.2d 699 (2007) — explains Maryland’s gross-negligence standard and the relationship between gross negligence and statutory immunity.
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Cooper v. Rodriguez, 443 Md. 680, 118 A.3d 829 (2015) — addresses gross negligence and circumstances in which the evidence is sufficient to permit factfinder consideration.
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Beall v. Holloway-Johnson, 446 Md. 48, 130 A.3d 406 (2016) — discusses the demanding gross-negligence standard and legal sufficiency.
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Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992) — establishes Maryland’s actual-malice requirement for punitive damages in non-intentional tort cases and illustrates the importance of heightened evidentiary standards.
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Washington Metropolitan Area Transit Authority v. Reading, 109 Md. App. 89, 674 A.2d 44 (1996) — discusses motions for judgment and JNOV and the importance of preservation of the grounds supporting post-verdict relief.
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Giant Food, Inc. v. Booker, 152 Md. App. 166, 831 A.2d 481 (2003) — discusses legal-sufficiency review in connection with motions for judgment and JNOV.
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University of Maryland Medical System Corp. v. Gholston, 203 Md. App. 321, 37 A.3d 1074 (2012) — addresses legal-sufficiency and post-trial review issues in medical-malpractice litigation.
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Randolph Stuart Sergent, Gross, Reckless, Wanton, and Indifferent: Gross Negligence in Maryland Civil Law, 30 U. Balt. L. Rev. 1 (2000) — detailed examination of Maryland gross-negligence doctrine and its relationship to statutory immunities protecting socially beneficial activities.
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Maryland Rule 2-519 — governs motions for judgment during jury trials and requires the grounds supporting the motion to be stated with particularity.
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Maryland Rule 2-532 — governs motions for judgment notwithstanding the verdict.
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Maryland Rule 2-533 — governs motions for new trial.
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Maryland Rule 2-534 — governs motions to alter or amend a judgment.