When to Make Your Motion for Directed Verdict

When should you make your motion for a directed verdict, that necessary precursor of a motion for judgment notwithstanding the verdict?

Many defense attorneys make such motions at the close of the plaintiff's case. However, because courts rarely grant directed verdict motions and often--if made before the defendant's case--take them under advisement for later determination, the parties and the court often agree to reserve such motions until just prior to issuing the jury instructions. Waiting until the end of the presentation of the evidence prevents interruption of the already scrambled flow of testimony.

Logically, making the motion at the close of the plaintiff's case makes sense. It is the "So what?" moment: the plaintiff has made his case and the defendant's attorney stands up and says, "Even if what the plaintiff has presented is found to be true, the plaintiff is not entitled to judgment."

For practical and logistical reasons, though, waiting until all of the evidence has been presented often makes more sense. The rules completely allow this, as reiterated by the Iowa Supreme Court today in Royal Indemnity Co. v. Factory Mut. Ins. Co., No. 07-1324.

Rule 1.945, without using the phrase "directed verdict," is the rule that governs motions for directed verdict. (In a trial to the bench, lacking a jury to whom to direct a verdict, the motion is called a motion for involuntary dismissal, consistent with the heading of the rule.) Rule 1.945 allows the motion to be made simply at some point "after a party has rested."

Furthermore, Rule 1.1003(2), discussing judgments notwithstanding the verdict, is expressly premised on entitlement to a directed verdict "at the close of all the evidence," not only at the close of the plaintiff's evidence.

The Iowa Supreme Court stated today that it "continue[s] to believe [waiting until the end] to be the best course of action." That is because "[e]ven the weakest cases may gain strength during the defendant’s presentation of the case" (which would suggest, to put it mildly, an unfortunate defense of the case).

Thus, not only did the Court state that parties may wait until the close of all of the evidence to make a directed verdict motion, it sent a message to trial courts that it would be prudent to wait to hear Rule 1.945 motions until the close of all of the evidence.