CIVIL PROCEDURE CLASS 28

Professor FischerColumbus School of LawThe Catholic University of AmericaOctober 24, 2005

CIVIIL JURY TRIALS

Procedure at trial

CIVIL JURY TRIALSAfter 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 verdict4. D presents direct evidence (P can cross-examine)5. P presents rebuttal evidence6. D presents rebuttal evidence7. 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

EVIDENCE: RULE 43Types of evidence includes . . . :??

Elaborate rules of evidence apply to determine what is and what is not admissibleThere are Federal Rules of EvidenceMany states follow these federal rules

BIG PICTURE: Judicial Control of Juries in Jury Trials-

1. Jury Instructions2. Special Verdicts3. Bifurcation/Trifurcation4. Remittitur/Additur5. J.N.O.V.6. Order for New Trial7. Order to Vacate Judgment

JURY INSTRUCTIONS (Rule 51)

What is a jury instruction?When are jury instructions given?

CLOSING ARGUMENTSBecause evidence is presented in a piecemeal fashion, it is hard for the jury to get a coherent picture of the caseThe purpose of closing arguments is to give the jury such a coherent picture of one party’s case

JURY DELIBERATIONS

Jury retires to deliberate, usually under the supervision of the bailiffIn 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

VERDICTSWhat is a general verdict?

What problems are there with general verdicts? What other types of verdicts are allowed under the FRCP?

Should Rule 49 be rejected

Justices Black and Douglas thought so“but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments”

JURY DEADLOCK

What happens if the jury cannot agree on a verdict?

BENCH TRIAL

Findings of Fact (R. 52)

BIFURCATIONFRCP 42(b)Bifurcation: liability and damagesTrifurcation: causation, liability, and damagesWhat 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?

JNOV

What is a JNOV?Advantages/ disadvantages over directed verdict

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.”

NEW TRIAL MOTIONS

FRCP Rule 59You should know the time limits for making 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).What are the grounds for granting a motion for a new trial?

GROUNDS FOR GRANTING A NEW TRIAL INCLUDE:

Judge realizes he mistakenly admitted evidence over correct objectionNewly discovered evidenceJudge realizes she wrongly instructed jury over correct objection (see FRCP 51)Verdict against the weight of the evidenceExcessive/inadequate verdict (see remittitur/additur above)

ADDITIONAL GROUNDS FOR NEW TRIAL

Improper conduct by counsel or judgeJury 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

MOTIONS TO VACATE JUDGMENT

What is the difference between a MOTION TO VACATE JUDGMENT and a NEW TRIAL MOTION?Grounds for MOTION TO VACATE JUDGMENTTiming restrictions

DEFAULT JUDGMENTS

Rule 55Difference between entry of default 55(a), default judgment 55(b)How can entry of default be set aside? How can judgment by default be set aside? See 55(c)