How to Oppose a Motion for a Directed Verdict

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1Developing Your Response

2Drafting Your Responsive Memorandum

3Filing Your Responsive Memorandum

4Arguing in Court

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A motion for directed verdict is filed by the other party in a lawsuit when he or she believes you have failed to present sufficient evidence to allow a matter to be presented to the jury. If you have been served with a motion for directed verdict, you need to oppose it or you run the risk of losing your trial. To oppose a motion for directed verdict, develop a persuasive response by understanding the other party's motion, the law of directed verdicts, and the facts of your case. Once you develop your arguments, you will draft your opposition to the motion for directed verdict, serve it on the other party, and file it with the trial court. In some circumstances, the judge will request that you and the other party present oral arguments before he or she makes a final decision on the motion.

Steps

Part 1

Part 1 of 4:

Developing Your Response

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   Read the other party's motion. After you present your case at trial the other party will have an opportunity to try to end the trial by filing a motion for directed verdict. The other party's motion will be filed with the court and served on you. The motion will contain various documents including a notice, a memorandum of points and authorities, and a declaration in support of the motion.

   • The most important document in the motion is the other party's memorandum of points and authorities. This document will lay out their legal basis and arguments that support their motion.
   • The notice will inform you of the hearing date and the type of motion that is being filed.
   • Read these documents carefully so you know how to respond. Any response you file with the court will need to counter the motion that was served on you.
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   Research the cited law. Within the other party's motion will be a memorandum with a table of authorities he or she used to argue their motion. Researching the law in the other party's motion is a great place to start to help you understand what you are up against. Look up the cases and statutes the other party cited to and build your own picture of the law on motions for directed verdicts. When you read the applicable authorities, think about how the other party framed the law and how you might be able to frame it differently.

   • When you research cases and statutes, you might need to visit a local law library to get access to full cases and accurate statutes. While basic internet searches can be a good start, you will usually need to conduct more in depth research to find the information you need.
   • In general, the law on motions for directed verdict state that the motion can be granted if the moving party persuades the judge that you failed to present sufficient evidence to meet your burden of proof. In other words, the other party must show that no reasonable juror could reach an outcome favorable to you. When a judge looks at the motion, he or she will make every factual assumption in your favor.
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   Conduct additional research. Once you have a basic understanding of the law surrounding motions for directed verdict, you need to do some additional research to find court cases and other legal authorities that help your argument that the motion should be denied. Specifically, try to find cases where motions for directed verdict have been denied under circumstances similar to your case. Try to find cases that discuss how narrow the circumstances are in which motions for directed verdict are granted. Apart from court cases, you might also look to statutes, practice guides, or other persuasive material that can help you make your case.

   • For example, in Michigan, the moving party must present "specific" grounds in support of their motion. You might look for cases that define "specific" and shed light on just how much support needs to be provided. You might find cases that tell you conclusory arguments do not equate to specific grounds. This sort of information will help you down the road when you draft your response.
   • If you are having trouble conducting proper legal research, talk with the librarian at your local law library. While they cannot give you legal advice, they can usually help you find what you are looking for. If you are really struggling, you might consider hiring someone to help (e.g., a paralegal, research expert, or lawyer).
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   Know your local rules. In addition to attacking the other party's motion on its content, you can also attack a motion that is filed improperly. All court motions must be filed in accordance to local rules, which can usually be found on the court's website or by visiting the courthouse in person. In general, motions for directed verdict can be filed after you present your evidence at trial. Additionally, the type of motion the other party is required to file will vary depending on whether they are the plaintiff or defendant and whether you are in criminal or civil court.

   • If the other party files their motion at an improper time or under the wrong legal standards, you can attack the motion by telling the court about these shortcomings.
   • It is also important to know the local rules as they will tell you when your response must be filed, how long your response can be, what format you must use, what font you must have, and how it must be spaced. If you fail to follow the rules, your opposition might be disregarded.
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   Develop your arguments. Once you have an understanding of the law of motions for directed verdict, you can begin to develop the legal arguments you will use to combat the motion. The arguments you present will be dictated by what the other party has said in their motion. Your job is to defend your position and counter the factual and legal arguments the other party makes. For example:

   • If the other party includes facts you believe aren't true, correct this in your response.
   • If the other party omits critical facts, state those facts in your response to help create a more complete picture.
   • If the other party cites to legal authorities you do not think apply to your case, point that out and explain why it doesn't apply.
   • If the other party applies or analyzes a legal authority in a way you don't agree with, provide your own analysis and apply the law the way you believe is appropriate.
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Part 2

Part 2 of 4:

Drafting Your Responsive Memorandum

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   Include a caption. Your opposition to the motion for directed verdict will contain three distinct documents. The first document, which is the most important, is the memorandum of points and authorities in opposition to the motion. This document includes legal authorities and arguments that support your opposition. It will start with a caption page that identifies the court, the parties, the case number, and the title of the document. Local rules might require you to add additional information to your caption (e.g., the judge's name and hearing information). The title of your memorandum should be: "Memorandum in Opposition to Motion for Directed Verdict."

   • Be aware that your caption needs to be formatted in a specific manner. Look for templates from your local court to help you. Caption templates can usually be found online or by asking the court for help.
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   Create a table of authorities. Directly following the caption page should be a table of authorities, which is a list of citations to all the legal authorities you relied on in making your arguments. The list should be broken up into separate sections for cases, statutes, and other authorities. Each citation should conform to the legal standard set out in the local rules. Alongside each citation should be the page numbers where each citation is found within your memorandum.

   • This table of authorities helps the judge understand what legal authorities you are citing to and what types of legal arguments you are making. The table provides the judge with an easy guide should he or she have to look up any of the laws you cite to.
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   Write an introduction. The introduction of your memorandum in opposition should provide the court with the legal, factual, and procedural background that has led to your opposition being filed. You should include all of the legally relevant facts at this point and those facts should amount to a story about your case. You also want to provide the court with the procedural posture of the case by explaining that the motion for directed verdict was filed and you are now opposing it before the trial continues.

   • Do not make any of your legal arguments at this point. They will be drafted after the introduction. At this point you simply want to make the court aware of your memorandum and why you are filing it.
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   Make your arguments. This is the meat of your memorandum. In this section you will create arguments and counter-arguments to help persuade the court that the motion should be denied. Each argument you make should contain appropriate citations to authorities, an explanation of the law, and your persuasive analysis that incorporates important facts. One common way to organize your argument is to state your request, state the law that applies to your request, and apply the law to the facts of your case.

   • You can make as may arguments as you want so long as they are made in good faith and have some basis in law. With that said, try to include only your strongest arguments. Do not worry about making contradictory statements because each argument will be looked at independently by the judge.
   • When you create your arguments section, place your strongest argument at the beginning. Fill in the middle with your weakest arguments and end on a strong note with another strong argument.
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   Draft a signature block. After your arguments are drafted you need to provide space for signatures and dates. Every party able to appear in court in an official manner who helped you draft your opposition needs a signature space (e.g., you and your attorney). Make sure you include each individual's title next to their signature line.
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   Create a declarations page. In addition to drafting a memorandum, you also need to create a declarations page. A declaration is a sworn statement to the court where you will write all of the facts you relied on to make your arguments opposing the motion. The declaration, like your memorandum, will begin with a caption page. It will contain all of the required information but the title will be changed to something like: "Declaration in Support of Opposition to Motion for Directed Verdict."

   • The body of the declaration will state that you are a party to the case and you declare that you have personal knowledge of the facts. You will then list the facts you used in your memorandum to support your positions.
   • Be sure to provide a line for your signature at the end of the document.
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   Include a proof of service sheet. The last document you will need to draft is a proof of service sheet, which requires your server to swear to the court that service was completed in accordance with the law. As usual, the document will start with a caption page with the title, "Proof of Service." The body of the document will ask the server to declare that he or she has served the other party properly on all interested parties. At the end, leave space for your server to sign.
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Part 3

Part 3 of 4:

Filing Your Responsive Memorandum

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   Get the required signatures. Once your opposition is drafted, you need to acquire the required signatures before you can serve the other party and file it with the court. These signatures play varying roles but all of them need to be obtained.

   • The memorandum must be signed by you and your attorney. The signature is used to attest that you have made the legal arguments in good faith and that you have not lied in your memorandum.
   • The declaration must be signed by you and the signature is used to declare that you have personal knowledge of the facts you laid out in your memorandum.
   • The proof of service sheet does not need to be signed until your server has completed service.
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   Serve your response. Once the appropriate signatures have been obtained, you will need to provide a copy of your opposition to the other party. At this point in the litigation, you can usually serve the other party by having someone over the age of 18 who is unrelated to the case mail a copy of your documents to the other party or their attorney. Do not mail your originals because those must be filed with the court.

   • Remember to get your server's signature once he or she serves the other party.
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   File your documents with the court. Your opposition to the motion for directed verdict must be filed with the court where your trial is currently taking place. To file your documents, take them to the courthouse and hand them to the clerk of courts. Your documents must be filed within a certain time period, which is dictated by the hearing date set by the other party. For example, in the Central District of California, your opposition must be filed at least 21 days before the hearing date.

   • In addition to filing in a timely manner, you also need to make sure you file the correct amount of copies. some courts do not require copies to be filed while other courts require two or three copies to be filed. In the Central District of California, for example, you must file the originals plus two copies.
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   Analyze any reply. The other party will usually have an opportunity to reply to your opposition before the hearing date. You usually will not, however, have the opportunity to reply to the reply unless the court gives you permission. If the other party chooses to reply to your opposition, read it carefully before your hearing. This reply will give you great insight into how the other party is going to argue their side during the hearing. The more you understand their arguments and come up with counter-arguments, the better your chances will be of defeating the motion.
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Part 4

Part 4 of 4:

Arguing in Court

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   Show up for your hearing. Your original hearing date is the date indicated on the other party's motion for directed verdict. However, the hearing date is often pushed back if you, the other party, or the judge has scheduling problems. Additionally, the judge can usually choose to cancel the hearing if he or she believes they can make a decision based solely on the written documents. If a hearing is scheduled, make sure you arrive at the courthouse early so you have time to park and get through security.

   • Once inside you will need to find the courtroom where your hearing will be held. Each courtroom usually has a schedule posted outside so you can find your case. If you need help you can always ask courthouse staff for assistance.
   • Be sure you bring copies of all documents related to the motion in case the other party or the court needs them.
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   Talk with the judge. When your case is called, go to the front of the courtroom and address the judge. He or she will ask you questions about your opposition memorandum and the arguments you made. Answer the judge's questions completely and concisely. Be extremely polite to the judge and the other party. If the judge is talking, do not interrupt. Be prepared to offer counter-arguments to the other party's arguments or to any points the judge might bring up. Do not get nervous if the judge tries to poke holes in your arguments. Answer the questions as best as possible and move forward.
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   Listen to the other party's arguments. During the hearing, the judge will also ask questions of the other party. While the other party is talking, do not interrupt. If you want to respond to something the other party says, wait until they are finished and then ask the judge if you can respond. Never talk directly to the other party unless you are instructed to do so.

   • Listen carefully to questions being asked and answers being given. In all likelihood you will be asked similar questions or you will be asked to respond.
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   Await the judge's decision. Once the judge has finished the hearing, he or she will need to make a decision about the motion for directed verdict. In some circumstances, if the judge has a good grasp on the arguments, he or she may make a decision immediately after the hearing while you and the other party are still present. In other circumstances, if the judge needs more time to consider things, he or she will make a decision at a later date. You will then be made aware by mail or by visiting the courthouse.

   • If the judge agrees with your opposition, the motion for directed verdict will be denied and the trial will continue. If, however, the judge grants the other party's motion, the trial (or pieces of it) will be decided in their favor immediately.
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