Don’t look now, but the Supreme Court of Virginia may have just redefined clarified the way you argue a motion to strike at the close of all of the evidence. Trial types may want to take some time to read over one of last session’s most important opinions, United Leasing Corporation v. Lehner Family Business Trust.

United Leasing is a breach of contract case. The plaintiff, the Lehner Family Business Trust, was not actually a party to the contract; one of the parties attempted to assign its claims to the Trust, and the validity of that assignment would play a major role in the litigation.

The parties went to trial before a jury. At the close of the Trust’s case in chief, United Leasing moved to strike on two grounds:

  • The Trust had failed to prove an assignment; and
  • The Trust had failed to prove damages.

The trial court overruled United Leasing’s motion to strike. United Leasing put on its own evidence, and the Trust presented evidence in rebuttal. After the jury retired at the close of all of the evidence, counsel for United Leasing stated:

Renew my motion to strike. For the record, I wanted to renew my motion to strike.

Instead of addressing the motion to strike, the trial court spoke to counsel for a while about exhibits and jury instructions. After closing argument and after the jury began its deliberations, the trial court asked United Leasing about its renewed motion. At that point, United Leasing argued only that the Trust had failed to prove damages. It did not reargue the assignment issue.

The jury returned a $1.1 million verdict for the Trust. United Leasing appealed, arguing that the Trust had failed to prove an assignment.

The Supreme Court held that United Leasing had failed to preserve that argument. A motion to strike tests the sufficiency of the evidence. At the close of the plaintiff’s case, United Leasing moved to strike on two grounds. But after United Leasing had put on its own evidence, and after the Trust had presented rebuttal evidence, a different set of evidence was before the trial court. In that sense, United Leasing’s “renewed” motion to strike was nothing of the sort; because it tested the sufficiency of a new quantum of evidence, it was a new motion.

In those circumstances, United Leasing was required to inform the trial court of the grounds for its new motion to strike. United Leasing argued the damages issue, but did not discuss the assignment issue. Its failure to do so prevented United Leasing from relying on Code Section 8.01-384, which generally provides that you only need to object once. An objection to the sufficiency of the evidence at the close of the plaintiff’s case is separate and distinct from an objection to the sufficiency of the evidence at the close of all of the evidence.

By neglecting to explain the basis of its new motion to strike, United Leasing deprived the trial court of an opportunity to rule intelligently on the issue. As such, it failed to preserve its objection, and was barred from raising the issue on appeal.

Lessons from United Leasing:

  • Do not “renew” your motion to strike–make a new one. As the Court stresses, a motion to strike at the close of all of the evidence is a separate and distinct from a motion to strike made at the close of the plaintiff’s case. It must be treated as such. A defendant must explain the grounds of his new motion to the trial court. The key is giving the trial court a fair opportunity to rule intelligently on the issue. With that in mind, it should be acceptable to incorporate earlier argument by reference, to some extent, so long as the record reflects the basis of the motion. But in the wake of United Leasing, an naked “renew my motion to strike” is probably not sufficient.
  • Do not argue things “for the record.” Here at the Firm on the Move (TM), I was taught that we don’t say things “for the record.” We say them to prevent grave injustices to our clients. But in practice, almost everybody says “for the record,” and we all know why: Using the words “for the record” distances you from the argument and makes things more comfortable for everyone in the courtroom. “For the record” is like a wink and a nod to the trial judge, letting her know that you’re not trying to undermine her authority; you are just speaking for the court reporter’s benefit. That’s not persuasive in real life, and it doesn’t read much better in the transcript. If you are serious about an objection, raise it and mean it.
  • Plan ahead. There’s a simple lesson buried in United Leasing, too: plan ahead. If the defendant had made even a token nod to the assignment issue in its second motion to strike, it may have changed the Court’s analysis. Missing something like that in the heat of argument is every lawyer’s nightmare. That’s one of the reasons why I’m a huge believer in checklists, outlines, binders, and second-chair lawyers.

From an advocate’s perspective, United Leasing is a fun opinion to read. The opinion’s reasoning is transparent, and the Court does a good job of describing and engaging the parties’ respective arguments. But at the end of the day, the opinion serves as a warning to strike the phrases “renew my motion to strike” and “for the record” from your trial vocabulary.