In In the Matter of South Coast Supply Company, No. 25-20176 (Richman, Duncan, Oldham, JJ.), the Fifth Circuit delivered a straightforward lesson in error preservation: If you want to challenge the sufficiency of the evidence after a jury verdict, you need to make the proper motions under Federal Rule of Civil Procedure 50. 

 

The case arose from a bankruptcy-preference case, where Briar Capital lost a jury trial on whether certain payments to an insider allowed him to receive more than he would have in a hypothetical Chapter 7 liquidation. On appeal, Briar Capital tried to attack the verdict on appeal based on legal insufficiency. 

 

Briar Capital's problem, though, wasn't the theory. It was preservation.

 

The Fifth Circuit’s reasoning was blunt. Briar Capital didn't move for judgment as a matter of law under Rule 50(a) before the case went to the jury. It also didn't file a Rule 50(b) motion after the verdict, or a Rule 59 motion for a new trial. On that record, the court held that Briar Capital had waived appellate review of the sufficiency of the evidence and that the panel was “powerless” to review the issue. The court also rejected the argument that plain-error review remained available notwithstanding the missing Rule 50 motions.

 

That is the part counsel should care about. We often talk about appellate risk as though it turns on the merits alone. It often does. But sometimes appellate risk distills to a straightforward binary option: Either the issue was preserved, or it wasn't. And especially once a case reaches trial, your ability to raise certain challenges—such as the evidentiary basis supporting the verdict—depends on motions that must be made at specific moments. If those steps are missed, even a potentially strong argument may never get a real hearing on appeal.