There are a number of devices that judges use to control jury decision-making. Some of these are designed to steer juries, some are designed to take cases from the jury. We’ve already seen one major piece – summary judgement, the most commonly-used device for taking a case away from the jury.
Another mechanism for controlling jury decision-making, but which is less intrusive, is the bifurcation of proceedings. Let’s say there is a case with issues of liability, then questions of damages, including the availability and amount of punitive damages. When courts are concerned that proof on the extent of plaintiff’s injuries might unduly influence a jury on the question of liability, the court can bifurcate the trial to deal with liability first. The idea is that you don’t give the jury information which is not needed to determine certain issues, the info is on a need-to-know basis, if you will.
Another mechanism is the motion in limine (at the outset). This is a mechanism for getting rulings on evidentiary issues before you get a jury impaneled and hearing the evidence before it could be excluded. It is a way of keeping inadmissible evidence from the jury’s ears, since you can’t "unring a bell". This is decided as part of a pretrial process, motions in limine are filed as part of the case management meetings.
Next, in order of appearance, we have the motion for judgement as a matter of law at close of the plaintiff’s case. This used to be called a motion for directed verdict. After the plaintiff presents its case, the defendant asks the court to issue a directed verdict or judgement as a matter of law now. It can also happen at the close of defendants case, anytime before the case goes to a jury. It can also happen within 10 days of the jury verdict, here it used to be called judgement n.o.v. See Rule 50(a) and (b) respectively.
Let’s assume that the case goes to trial, plaintiff’s case in chief goes in, defendant’s case goes in, and the case is about to go to the jury. The next mechanism is jury instructions. The court makes a decision about what instructions to use, instruct the jury about the essential elements, also credibility determinations, how it should weigh evidence, and so on. It is sort of a "users’ manual". This is one of the places where you have conflicts about what the law is. There are competing, proposed jury instructions, and by deciding between them, the court is deciding on the applicable law. This can be a fruitful ground for appeal.
In addition to jury instructions, another way of controlling jury decision making is to use special verdict forms. So there are two ways a jury can render a verdict. The one you see on T.V., the criminal verdict of guilty/not-guilty, the same thing can happen in a civil case. "We find the defendant liable in the amount of $X." Another way to do it is to require the jury to make special findings on each element of the case, even subfindings on pieces of the elements. This structures the decision-making for the jury, makes it less likely that decision on one element will skew decisions on other elements. Also makes it easier for the jury to separate the issues. It forces the jury to consider each element individually. It deters mixing, and catches it when it does occur.
Jury can’t take their own written notes, they can take exhibits, documents, jury instructions, they can send questions out to the judge, they can take in the complaint and answer. They don’t get a transcript or record of the trial either, although they can ask for clarification and have portions read back to them on request. As a lawyer, you want to think about the documentary record, knowing that written evidence can be taken into the jury room. Ditto with drafting the complaint.
Now we have a verdict, the next is the judgement n.o.v. In addition to the motion for judgement not withstanding the verdict, one or the other party can file a motion for a new trial, Rule 59. This rule is very uninformative. (a) means that if a jury could be granted in 1791, it could be done now consistent to the right to jury.
Three different categories: 1) Evaluative errors on the part of the jury; 2) Process errors, the court misinstructed the jury, or a member of the jury violated the rules underwhich they deliberated, or in certain limited circumstances: 3) newly discovered evidence that couldn’t have been discovered at the time of trial, and which in the interest of justice a new trial should be granted.
The most common category is 1), evaluative errors. The most common articulation of the standard is in Aetna Casualty v. Yates. See p. 511. What is the difference between the standard for granting a new trial, as opposed to the standard for directing a verdict?
Granting a new trial: Verdict is against the clear weight of the evidence, based on false evidence, would result in a miscarriage of justice even though there may be evidence which would prevent the direction of a verdict.
Directing a verdict: No legally sufficient basis for a reasonable jury to find in the non-moving party’s favor.
The former is a broad standard, weaker than that for granting a motion for directed verdict with respect to the given evidence. The judge must be left with a definite and firm conviction that a mistake has been committed. This turns the judge into a "super-juror". The consequence is very different than that for directing a verdict. What the judge is basically doing is causing a mistrial, like a 13th juror where a unanimous verdict is required.
When judging as a matter of law, you are not suppose to weight evidence or make credibility evaluations, but if there is a very obvious mistake, the judge can do so in granting a new trial.
Under Liberty and Masushita, the line is blurred, but not all judges buy into it. Also, the above doctrine evolved before the trilogy. Also, in state courts, the line is still sharp.
As practical strategic matter, orders granting new trials are extremely difficult to disturb on appeal. It is a subjective standard relating to avoiding a miscarriage of justice. The judge sees the witnesses and evidence in a way that an appeals court cannot.
Remember that after a verdict, the verdict has to be put into the form of a judgement. Sometimes it is automatic, in other jurisdictions the winning party has to move for it. It is when judgement is entered that res judicata kicks in. Then there is a 10 day period after entry of judgement for filing various motions.
A party can bring both motions – judgement as a matter of law first, and in the alternative, a motion for a new trial. What usually happens is the case settles if the latter is granted.
The motion for judgement as a matter of law or in the alternative the motion for a new trial work in tandem with two other mechanism: additur and remittur. The verdict consists of two parts, who wins and how much. Additur and remittur don’t change the liability, but do change the "how much". If a defendant loses, and files a motion for judgement as a matter of law, or in the alternative for a motion granting a new trial, and the judge responds by ordering a new trial contingent upon the plaintiff’s refusal to accept a lesser amount. The choice gets put to the plaintiff, either take a reduced settlement, or judge will grant a new trial.
Last topic for today: What exactly is the standard for judgement as a matter of law, and what has happened since the Celotex trilogy with respect to judgement as a matter of law, where you have the same standard with respect to summary judgement.
Take a look at Reeves v. Sanderson. Consider the procedural history, and the various mechanisms. Reeves sues Sanderson on basis of ADEA. The case survives summary judgement, goes to trial before the jury, and during the trial, the defendant twice moves for judgement as a matter of law under Rule 50, is denied twice. There is closing arguments, and now jury instructions: "If the plaintiff fails to prove that age was a determinative or motivating factor in terminating him, then defendant wins." The jury returns a verdict in favor of plaintiff, awards $35,000 in compensatory damages, finds that the violation was willful, and this doubles the damages to $70,000. The D renews judgement as a matter of law motion, and in the alternative, moves for a new trial. Meanwhile, plaintiff crossmoves for additur, asking for front pay (an equitable remedy), so we now have these three motions pending. The court denies both defendants’ motions, and grants plaintiff’s motion for front pay. So the defendant appeals the decision not to direct a verdict, and the 5th Circuit reverses on grounds that the plaintiff had not submitted evidence from which a reasonable jury could find that age had been a determinative factor. The decision is not on a Rule 50 issue, but the question of whether there was a pretext, not something we have to worry about. In the process of rendering that decision, the court says a lot about the standard for judgement as a matter of law, and for what that has to do with the standard for summary judgement. Mine this for all the propositions for which it stands. This leaves us in a position that looks different from where we were with respect to Celotex trilogy.
See section III(A) of the decision. Let’s extract all the different principles about granting a judgement under Rule 50, or summary judgement under 56, that we can bring to bear on future cases. 1) court must consider record as a whole. 2) Standard is the same under 50 and 56. Evidence must be admissible. Then, looking at the record as a whole, decide whether th party with the burden of proof has placed enough material on the record so that a reasonable jury could find for the non-moving party. Looks like what happens at trial, if you substitute the record of evidence at trial for the record of evidence at the time of summary judgement motion. The standards are the same.
Next point: The court says, "In doing so, however, the court must draw all reasonable inferences…." See the opinion. Seems to put us back before Matsushita. Did Reeves signal a retrenchment, putting the brakes on Celotex? Could be a response to the increasing statistics on summary judgement.
Consider the hypos from Swift’s handout in the context of these different opinions.
There are a lot of contradictions here. This is crazy! Doesn’t it all come down to what "reasonable" is anyway?
It is most helpful if you think about law probabilistically. Don’t try and answer the question, "What is the law?", or "What is the rule?" Given what you have, as contradictory as it may be, given the jurisdiction you are in, given what you know about the judge, what is the likelihood that judgement would be granted?
Remember the joke about the three umpires. One says, "Call em as they are." Second says, "Call em as I see em". Third says, "They ain’t nothin’ ‘til I call em!"
News 
Market Data 
Discover 
AI
