Civil Jury Trial Mistakes

The Constitution at Article I, Section 6, gives clients a right to jury trial in civil actions: “The right of trial by jury shall remain inviolate.” Lawyers need to avoid procedural mistakes that jeopardize that right.

Jury Demand

Normally a plaintiff who wants a jury demands it in the complaint, and a defendant wanting a jury demands it in the answer. If either party makes a demand, it cannot be withdrawn without the opponent’s consent. Civil Rule 38.05.

What if, after all pleadings are filed without any jury demand, you awake one morning wanting a jury? The deadline is in Rule 38.02. It is 15 days after service date of the final Rule 7.01 pleading raising an issue of fact. The method is to file a written demand with the clerk of court.

Motion for Directed Verdict

At the close of plaintiff’s proof, a defendant often moves for a directed verdict. Almost as often, the judge overrules the motion. Defense counsel should make a mental note to renew the motion at the close of all proof before the jury retires. Why?

Because this mistake would preclude a useful posttrial motion. Take a look at Rule 50.02: “Within 30 days after the entry of a judgment a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party’s motion for directed verdict.” Some lawyers call this a motion for judgment non obstante veredicto (notwithstanding the verdict).

Motion for a New Trial

A fatal appellate mistake is to omit issues from a motion for new trial. Civil Rule 59.02 allows 30 days from entry of judgment to file and serve this motion. The trial judge is given an opportunity to review alleged trial errors. If the motion is overruled, the appellate clock starts ticking. Appellate Rule 4 requires a notice of appeal be filed with the trial court clerk within 30 days of entry of the order denying a new trial.

A proviso in the middle of Appellate Rule 3(e) is crucial. “Provided, however, that in all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for new trial; otherwise such issues will be treated as waived.”


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute.