The motion for judgment can present arguments in favor of a final judgment that reflect what you think the court should have ordered.

In most business and contract disputes, plaintiffs file claims and defendants file counterclaims. When your client and opponent get to the charge, there are jury questions for each claim that the judge allows to go to the jury, some for your client and some for your opponent. After the jury deliberates, the verdict is often a mixed result. Your client wins some claims and loses some claims, meaning that your opponent has won some claims and lost some claims.

Now what? How do you get to an appealable final judgment that preserves your right to appeal?

The first thing that pops into your head is that the jury obviously got it wrong when it answered questions unfavorable to your client, so you need to get moving on your JNOVs (judgments non obstante veredicto) so that your client is the only party that wins. But pause for just a moment and remind yourself that the other side is thinking the same thing. So, you will end up at the courthouse arguing these JNOVs. The judge, most likely, will deny all JNOVs after thoughtful consideration of the issues because judges are not inclined to disregard jury findings.

Once the judge decides the JNOVs, the court will determine whether any party is the prevailing party. If the court decides that your client is the prevailing party, then the court decides how much attorneys’ fees should be awarded either from the jury answers or after trial from the court. Once the court decides the attorneys’ fees and costs, the parties now are faced with trying to get a judgment from the court that enables them to appeal the jury’s findings as well as the court’s denial of the JNOVs and its ruling on attorneys’ fees, costs, and other matters.

Courts often instruct each side, including you, to submit a proposed final judgment that memorializes the court’s rulings, including those that are bad for you. To comply with the court’s request for a proposed judgment without appearing to ask the court to rule in a way that is contrary to your client’s interests and inconsistent with the arguments you need to assert on appeal, you should carefully consider how to craft your motion for judgment and the proposed final judgment.

The motion should also include language that expressly reserves the right to appeal particular findings, conclusions, and orders in the eventual final judgment. At the same time, though, the motion should include a proposed final judgment that reflects exactly what the court ordered. In this way, you can argue for the judgment you think is right, reserve your appellate rights, and do what the court instructed you to do.

Alternatively, you could ask the court to reconsider its prior rulings. The court will probably decline to disturb those rulings, but the exercise of arguing for rehearing can sharpen the arguments you will need to make in post-judgment motions and on appeal. If you do ask for reconsideration and the court rules against you, your subsequent motion for judgment should not re-urge the points the court just overruled. Instead, the motion should memorialize the verdict and the court’s rulings, then expressly reserve your appellate rights and ask the court to sign a proposed judgment. That proposed judgment should be consistent with all the court’s rulings.

Most of your appellate points are preserved through timely objections, motions, and arguments before and during trial. After the trial, your task is to move for judgment in a way that reserves your appellate rights so that you don’t forfeit the points you already preserved. And once you get a signed judgment, you will likely need to file a post-judgment motion, like a motion for new trial, that can preserve your remaining appellate issues. You should also file a request for findings of fact and conclusions of law on any matter tried to the court. Once all of this is done, you will be ready for the court of appeals.

Joseph M. Cox is a Partner at Duane Morris and Jason Boatright is Special Counsel at the firm.

Reprinted with permission from Dallas Bar Association.