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Civil Procedure II
Santa Clara University School of Law
Van Schaak, Beth

The Trial

Judgment as a Matter of Law

i. Previously known as “Directed Verdict”
1. Directed verdict is now called “judgment as a matter of law” in federal courts, though it is still called “directed verdict” in state courts. If the judge concludes that one party’s case is so weak that no jury, acting rationally on the evidence before it, could find for her, allowing the case to go to the jury simply invites irrational decision-making based on irrelevant or prejudicial factors. The judge has traditionally had the authority to guard against such flawed verdicts by refusing to send cases to the jury if there is no legitimate doubt as to which side should prevail (there is no meaningful factual dispute and thus no real role for the jury to play).
2. The standard for entering judgment as a matter of law
a. The “scintilla” test – the case must go to the jury if there is even a scintilla of evidence to support the opposing party’s case.
b. The second test requires the judge to consider only the evidence that supports the nonmoving party.
c. The third test for taking the case from the jury requires the judge to consider the nonmoving party’s evidence in its most favorable light (just as in the second test) but also to consider any evidence put forward by the moving party that is not impeached or contradicted by the opposing party’s evidence.
i. The federal courts apply this standard.
ii. Previously known as “Judgment notwithstanding the verdict” [j.n.o.v.] 1. Traditionally, the judge has had the authority to displace the jury’s verdict by entering a “judgment notwithstanding the verdict,” or j.n.o.v., which is essentially a delayed (or, more accurately, renewed) motion for a directed verdict. The standard for granting jnov is the same for directing a verdict. The 1991 amendments to the Federal Rules changed the name of the jnov motion to “motion for judgment as a matter of law”, the same as the Rule 50(a) motion made during trial to take the case away from the jury.
2. Why would a judge not enter a directed verdict before the jury verdict and then enter a jnov after the jury returned their verdict?
a. The judge’s entry of judgment as a matter of law will frequently be appealed, and if the judge enters directed verdict before the jury renders a verdict, the case will have to be completely retried before a new jury to get a verdict. If, however, the judge enters a jnov after the jury has rendered a verdict, then on appeal, the appellate court will simply reverse the judge and affirm the jury verdict, rather than having to order a new trial.

The Right to a Jury in Civil Cases = Rule 38, 39, and the 7th Amendment

i. RULE 38 = Jury Trial of Right
ii. RULE 39 = Trial by Jury of by the Court
iii. The Seventh Amendment
iv. Introduction = the right of parties to a jury trial is largely determined by historical precedent. The 7th Amendment says that in suits at common law (meaning not at equity) a litigant is entitled to a jury trial. Therefore, courts today must determine whether a case would have been tried under law or equity centuries ago. Problems with this historical test: there are causes of action that exist today that did not exist at the time of the Constitution or before equity and law courts were combined, even centuries ago, there was much overlap between law and equity, etc. A jury trial is a right, not a requirement, and therefore, it can be waived if neither of the parties wants it.
v. Curtis v. Loether (1974) = when Congress provides for enforcement of statutory rights in an ordinary civil action in the district courts, a jury trial must be available if the action involves rights and remedies of the sort typically enforced in an action at law. The 7th Amendment does apply to actions enforcing statutory rights if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.
vi. Markman v. Westview Instruments, Inc. (1996) = the Court rules that patent infringement cases must be tried to a jury who decides whether or not there was infringement, like there predecessors centuries ago, but that judges are better suited to find the acquired meaning of patent terms (interpreting “terms of art”). Policy consideration: uniformity in the interpretation of terms of art in contracts is necessary to foster technological growth and industrial innovation.

Choosing a Jury = RULE 47 (Selection of Jurors) and RULE 48 (Number of Jurors)

i. Challenge for cause = what is required for a juror to be stricken for cause?
1. The potential juror is so biased that they would be incapable of making a fair decision.
ii. Thiel v. Southern Pacific Co. (1946) = court officers testified that they deliberately excluded from the jury lists anyone who worked for a daily wage, as they had found that such persons couldn’t afford to suffer the financial loss of jury service and would thus be excused for that reason anyway. The petitioner moved to strike the entire jury panel on the basis that the panel gave majority representation to one class, which constituted discrimination, but the motion was denied. The Supreme Court held that the petitioner’s motion should have been granted. Prospective jurors should be selected by court officials without systematic and intentional exclusion of groups. Jury competence is an individual rather than a class matter. Individual wage earners may be excused, but the whole class cannot be excluded without severely damaging the democratic nature of the jury system.
iii. Edmonson v. Leesville Concrete Co. (1991) = the Court held that race-based exclusion from juries violates the equal protection rights of the excluded jurors. Race discrimination in the courtroom tarnishes the credibility of the court and puts into question fairness and legitimacy of the proceedings conducted there.
iv. J.E.B. v. Alabama ex rel T.B. (1994) = holding: “Intentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women”(692).
1. O’Conner (concurring) = writes that this holding should be limited to the government’s use of gender-based peremptory

nn v. Hunt (1953) = the jury comes back with a defense verdict, and the trial judge sets it aside, feeling it was against the weight of the evidence. Judges can make more sound judgments in certain situations because of their experience in the courtroom.
vi. RULE 59 = the grant of a new trial
1. When can a new trial be granted?
a. Judicial error
b. Prejudicial occurrences
c. Jury misconduct
d. Evidence to impeach the jury verdict based on what goes on in the jury room
e. “Against the weight of the evidence”
2. Sanders-El v. Wencewicz (1993) = the intentionally prejudicial conduct of the defense counsel and the nature of the information disclosed by that conduct (plaintiff’s arrest record), along with an absence of curative instruction from the trial judge to the jury to disregard the improperly conveyed information in what was a close case, cause the court here to find prejudicial error in the refusal of a mistrial.
a. The standard of review on refusal to grant a mistrial = abuse of discretion.
The Jury

1. Right to a Jury – The 7th Amendment “preserves” the right to a jury trial. Cases historically at law (tort, contracts, most monetary claims) have a right to jury, those at equity (injunctions, specific performance) do not. In deciding, the court will look to historical precedents to whether this type of case was entitled to a jury or not.

a. Statutory Interpretation – the courts will look to see whether a relevant statute envisioned a right to a jury. In Curtis v. Loether (654), a housing race discrimination case, Marshall wrote that the Committee notes on the legislation indicated that jury trials were envisioned for damages actions under Title VIII. Also, there is strong precedent for jury trials in actions to enforce statutory rights that create a cause for damages (though not all cases seeking damages are entitled to a jury).

b. Historical Analysis – In Curtis, SC held that the right to a jury extends beyond the causes of action available in pre-Revolution England. Additionally, the legal rights and damages P was seeking to enforce resembled those of common law tort cases.

c. Interpretation of Terms – the court in Markman v. Westview (669) held that the role of interpreting a term of art in a patent was that of the judge, not the jury. Historical record was in equipoise, so the court said pragmatism dictates that judges are more adept and more experienced at interpreting documents. Also, judge’s rulings will be more consistent with each other, whereas juries not bound by stare decisis.