Procedural Errors During Trial Cause Trade Dress Defendant to Forfeit Rights on Appeal

by Lee Gesmer on July 13, 2012

Procedural Errors During Trial Cause Trade Dress Defendant to Forfeit Rights on Appeal

I’ve written before about waiver.  As I said back in July 2008, the “one thing that scares the bejesus out of trial lawyers is waiver.”  Waiver is a constant risk in litigation, but nowhere is it more of a risk than during trial.  Failure to object to improper jury instructions, or failure to follow the proper procedure required for judgment as a matter of law (“JMOL” in lawyer parlance) can constitute a forfeiture, and preclude the right to raise the omitted issue on appeal.

To make matters worse, these potential waivers come when the fog of war is at its worst: after days or weeks of sleep-deprived trial stress the lawyers have to file a written motion for JMOL just before the jury is handed the case. A lawyer may know that the failure to do this will forfeit the right to raise the missed issue on appeal, but at that point the lawyer is frantically preparing for closing argument and dealing with the countless issues that come up at the end of trial, and the motion may be forgotten or not thoroughly prepared.  However, filing the correct pre-verdict motion is not the end of the matter. FRCP 50 requires that the motion be renewed within 28 days after the court enters judgment.  However, a post-judgment JMOL motion cannot raise an issue that was not presented in the prejudgment motion.

Belk v. Meyer Corp., decided by the 4th Circuit in May, is a classic example of JMOL forfeiture. The case involved a claim of trade dress infringement of high end cookware.  Following a jury trial the plaintiff obtained a judgment for over $1.2 million.  On appeal to the 4th Circuit the defendant attempted to raise a potpourri of errors committed by the trial judge, but the 4th Circuit held that most of them had been forfeited based on the defendant’s failure to file a timely post-judgment JMOL motion.  In its lengthy opinion the 4th Circuit provides a detailed tutorial on  what lawyers must do under FRCP 50 to avoid forfeiting rights on appeal.  However, it’s too late for the losing party in this case.

Belk v. Meyer Corp

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