CIVIL PROCEDURE CLASS 25
Professor Fischer
Columbus School of Law
The Catholic University of America
October 23, 2002
WRAP-UP
Last time we studied rules that attempt to
ensure a fair and impartial jury:
1. Directed verdict rule: 50(a) – takes the
case away from the jury where no reasonable
jury could find for non-moving party. This
rule seeks to avoid totally irrational verdicts.
2. Jury Selection/Voir Dire/Size of Jury Rules:
try to ensure a fair and impartial jury is drawn
from a cross-section of the community
We also learned that the Seventh Amendment
PRESERVES a right to trial by jury where this
existed at common law at the time of
ratification of that Amendment (1791).
WHAT WILL WE DO TODAY?
Learn about trial procedure (in brief
outline)
Learn about some judicial controls that
exist for juries - Jury Instructions,
Special Verdicts,
Bifurcation/Trifurcation,
Remittitur/Additur, J.N.O.V., Order for
New Trial, Order to Vacate Judgment
Batson Rule Extended to GenderBased Peremptory Challenges
What is the Batson rule again?
In J.E.B. v. Alabama, 511 U.S. 127
(1994) (violation of Equal Protection
Clause of Amendment XIV)
There is a question as to whether other
groups should be entitled to Batson
protection (Catholics? Deaf people?
Hispanics? etc.)
2 KINDS OF CIVIL TRIALS
Jury Trials
Bench Trials (Trial By Judge Alone)
JURY SELECTION
Many lawyers feel that this is the least
satisfying part of a trial
Main goals of lawyers at voir dire stage
1. Make a good first impression
2. Identify/remove most obviously biased
jurors
3. Begin process of persuading jurors by
introducing theory of case
4. Do all this without tiring or boring the jury
Little agreement on how to achieve these
goals
CIVIL JURY TRIALS
After choosing a jury, the procedure is usually as follows
(depends on local rules)
1. Ps opening statement (usually goes first)
2. Ds opening statement (option to do this after P’s
direct evidence)
3. P presents direct evidence (D can cross-examine)
4. D may move for a directed verdict
4. D presents direct evidence (P can cross-examine)
5. P presents rebuttal evidence
6. D presents rebuttal evidence
7. P or D may move for a directed verdict. Assuming no
successful directed verdict motion, closing arguments
(usually P speaks first and last)
8. Jury instructions (judge could also instruct in
beginning and at end)
BENCH TRIALS
Less formal procedure than jury trials
Often, the judge does not
require/permit opening statements or
closing arguments. Why do you think
this is the case?
Obviously, there is no need for jury
instructions in a bench trial!
EVIDENCE
Types of evidence include:
2. Deposition testimony
3. Documents
4. Other relevant items
Elaborate rules of evidence apply to
determine what is and what is not admissible
There are Federal Rules of Evidence
Many states follow these federal rules
CLOSING ARGUMENTS
Because evidence is presented in a piecemeal
fashion, it is hard for the jury to get a
coherent picture of the case
The purpose of closing arguments is to give
the jury such a coherent picture of one
party’s case
Is is acceptable for closing arguments to be
highly emotional?
Can closing arguments include facts not in
evidence?
BIG PICTURE: Judicial Control
of Juries in Jury Trials1.
2.
3.
4.
5.
6.
7.
Jury Instructions
Special Verdicts
Bifurcation/Trifurcation
Remittitur/Additur
J.N.O.V.
Order for New Trial
Order to Vacate Judgment
JURY INSTRUCTIONS (Rule
51)
What is a jury instruction?
When are jury instructions given?
Parties usually submit proposed jury
instructions and the court determines the
final jury instructions
Pattern jury instructions are mandatory in
some jurisdictions
If you want to appeal based on faulty jury
instructions, you must object before jury
retires to consider its verdict
QUESTIONS ON JURY
INSTRUCTIONS
Can a judge instruct a jury that the
plaintiff should win?
Can a judge summarize the evidence in
jury instructions?
What happens after the judge instructs
the jury?
JURY DELIBERATIONS
Jury retires to deliberate, usually under
the supervision of the bailiff
In civil cases, jurors usually are
permitted to leave for the night.
However, when jury deliberations are
recessed, the judge will tell the jury not
to discuss the case to anyone and not
to read media coverage of the case
VERDICTS
What is a general verdict?
What is a special verdict? SEE FRCP 49
What is a general verdict with
interrogatories? SEE FRCP 49
What are the advantages and disadvantages
of special verdicts?
Sometimes the judge polls the jury to make
sure the verdict is agreed on by the required
number of jurors
How many jurors must agree on the verdict in
federal court? SEE FRCP 48
JURY DEADLOCK
What happens if the jury cannot agree
on a verdict?
BIFURCATION
FRCP 42(b)
Bifurcation: liability and damages
Trifurcation: causation, liability, and damages
What should a court take into consideration in
determining whether to bifurcate a trial?
Must birfucated trials be tried before the
same jury?
What are the advantages of bifurcation?
What are the disadvantages of bifurcation?
REMITTITUR/ADDITUR
What is remittitur?
What is additur?
Is remittitur constitutional? Why or why
not?
Is additur constitutional? Why or why
not?
IS A J.N.OV.
CONSTITUTIONAL?
Remember Amendment VII: “No fact tried by
a jury shall be otherwise reexamined in any
court of the United States, than according to
the rules of common law.”
The U.S. Supreme Court has held that there
was a common law analogue to the directed
verdict but no DIRECT common law
analogues for the j.n.o.v.
So is a J.N.O.V. constitutional? Why or why
not?
SAVING LANGUAGE IN RULE
50(b)
“If, for any reason, the court does not
grant a motion for judgment as a
matter of law made at the close of all
the evidence, the court is considered to
have submitted the action to the jury
subject to the court’s later deciding the
legal questions raised by the motion.”
HYPO: TIME LIMITS FOR J.N.O.V.
AND NEW TRIAL MOTION
You represent the D. Assume that on Feb. 1,
a Thursday, the jury comes in with a P’s
verdict in Galloway and judgment is entered
the same day. You wish to move for a
judgment n.o.v. and a new trial. You’re
awaiting a copy of the transcript, and thus
want the most time possible. Absent a
snowstorm, when is the latest you can file
your motions? Can you get an enlargement
of time under FRCP 6?
Are the time limits for making these motions
sensible?
NEW TRIAL MOTIONS
FRCP Rule 59
You should know the time limits for making a
motion for a new trial.
What are the grounds for granting a motion
for a new trial?
Can a judge grant a new trial on its own
initiative? In what circumstances? What time
limits apply? See FRCP 59(d).
GROUNDS FOR GRANTING A
NEW TRIAL INCLUDE:
Judge realizes he mistakenly admitted
evidence over correct objection
Newly discovered evidence
Judge realizes she wrongly instructed jury
over correct objection (see FRCP 51)
Verdict against the weight of the evidence
Excessive/inadequate verdict (see
remittitur/additur above)
ADDITIONAL GROUNDS FOR
NEW TRIAL
Improper conduct by counsel or judge
Jury misconduct (e.g. verdict not
unanimous/inconsistent)
When can misconduct in a jury’s deliberations
be grounds for a new trial? To what extent is
what is said in the jury room admissible? See
Fed. R. Ev. 606(b)?
Do you agree that Fed. R. Ev. 606(b) strikes
an appropriate balance? See p. 510 CB