Who may move for JMOL during opening arguments?

• A. nobody
• B. the plaintiff
• C. the defendant
• D. either party with the judge's consent

Answer: (A)

Judgment as a Matter of Law hinges on the trial record having enough evidence for the court to rule on the legal sufficiency of a party’s claim or defense. A JMOL motion must be made after the issue has been “fully heard” on evidence and before the case is submitted to the jury. Opening statements, however, are not evidence and do not provide the factual record the court needs to evaluate a JMOL. Since nothing has been presented yet for the court to judge, no party may move for JMOL during opening arguments. If a JMOL is available later, it would be raised after evidence has been presented—typically after the opposing party has rested or after all evidence is in—rather than at the start of trial.