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U.S. Supreme Court Amicus Brief on Appellate Preservation of Purely Legal Summary-Judgment Arguments

Warner filed a U.S. Supreme Court amicus brief on behalf of the DRI Center for Law and Public Policy—the public policy “think tank” and advocacy voice of DRI—supporting the petitioner in Dupree v. Younger, No. 22-210. The case presents an appellate-preservation question of particular importance to civil defense lawyers: when a party raises purely legal issues in a motion for summary judgment that is denied, must the party reassert the same arguments in mid- and post-trial motions for judgment as a matter of law under Federal Rule of Civil Procedure 50 to preserve them for appellate review? A majority of circuits have held that the answer is no, reasoning that Rule 50 motions exist to focus on the sufficiency of the evidence at trial, not legal issues unaffected by the trial evidence. Four circuits, however, have reached the opposite conclusion. In those circuits, a party must reassert a purely legal summary-judgment argument in Rule 50 motions to preserve it for appellate review.  The amicus brief contended that the Supreme Court should adopt the majority rule and hold that a party need not renew in motions for judgment as a matter of law purely legal arguments capable of resolution with reference only to undisputed or no facts. It focused on the minority rule’s pernicious practical implications.