CIVIL PROCEDURE OUTLINE
Law and Fact at Trial: Roles of Jury, Judge, and Parties
Factual Uncertainty (Preponderance of Evidence)
Burden of proof (persuasion + production):
Burden of production is usually placed on plaintiff. (Burden of going forward)
Burden of persuasion: the party that must ultimately persuade the fact finder of the truth of the issue in a civil case
Standard is the preponderance of the evidence. (Risk of a mistake of imposition or denial of punishment.) Higher burdens when the punishment is greater (e.g. criminal law)
The party with the burden of persuasion will lose unless he persuades (does the evidence in total lead you to believe that P’s facts are more true than false?) If the jury cannot decide one way or another than the P has not met his burden and he loses.
Preponderance of the Evidence: “Probably more true than false:” how to define?
Evaluating testimony:
What are the reasons the witness gave you for his observations?
Which witness had a better opportunity to observe? (e.g. how far away, night/day/cloudy, capacity of witness: age, vision etc.)
Prejudicial relationship of witness to the P or D. What is his motive to speak the truth?
Is he credible? Do I believe what he is saying? Is the witness trying to hide something?
Weight of the testimony – is he an expert?
How long ago did the incident occur?
Validity of studies and statistics – these are not facts
Who performed the study, and what was the purpose of the study? (Bias etc.)
If there are probabilities. are they independent of each other?
Definitions of terms in the study? (e.g. “couple:” married, met that morning, etc.) How do they compare to the real life situation?
Samples predict for certain populations; they are not broadly applicable (e.g. if a study shows a certain percentage of men with beards, some communities may have large numbers of bearded men). What is the actual population at issue?
Did the suspects have these characteristics at the time of the crime (e.g., grow a beard, dye hair)?
Must look at the probability of every step.
How willing are we to accept uncertainty in holding someone liable? How confident do we have to be before we impose liability?
If we do not even know if D was there or had any connection to the crime, then we may be more reluctant to hold D liable.
If we do know that D was there, and are trying to determine if he did something wrong or the level of wrong, then we are less uncomfortable with holding D liable (e.g. tire manufacturer or employer discriminator: we know we have the right party. Q: did you do anything wrong?). (Res Ipsa)
If we know that D was negligent (e.g. left a hole in the fence), and are merely trying to determine if the act caused the injury, then the burden shifts to D to prove that it did not do it. (known wrong, known person). When you know who caused the wrongful act, how much of a need is there to prove causation of injury? Let the jury decide
Why do we insist on “all or nothing?” Why not split the difference (if we are 50% sure it was D1 and 50% sure it was D2, then why not make them each pay half?)
Encourages parties to settle. Neither side wants to go to trial- encourages the parties to split it themselves.
If don’t settle, then parties will try harder at trial.
Triers of fact (judge and jury) will think harder about the matter when it is all or nothing.
Sometimes uncertainty will reflect in the reward: P will not get as much as if the jury was absolutely sure that D was liable.
Jury’s Fact Input (Jury Misconduct/Mansfield Rule/Rule 606b) (HB 581)
What constitutes jury misconduct?
Texas Employers ‘ Insurance Ass ‘n v. Price (CB46): Jury member used his own specific knowledge regarding union employment and D’s permanent inability to find work due to his back injury. Otherwise, only evidence supporting 100% disability was D’s contention (even his own doctor said that he only had 20% disability).
Judge held that it was improper for juror to relate his personal experience. We want juries to use their general knowledge and experience, but not specific personal experience. This is because counsel does not have an opportunity to refute or verify the evidence. However, drawing this distinction is difficult. General rule: the more specific and particularized the information, the more likely it will be deemed new evidence.
Jurors can only consider the evidence brought forward in a trial. Thus, misconduct would include visiting the accident site, or discussing the case with those outside the courtroom. Rationale: What jurors see at the accident site may be different from how it looked at time of the actua1 accident. Jurors may also not be very good observers.
Jurors must decide the case only in accordance with the judge ‘s instructions. They may not “flip a coin” or enter a “compromise verdict” (not all members find D liable so they reduce the damages) or “quotient verdict” (average each juror’s desired damage amount and divide by number of jurors. Do not consider liability).
If judge finds that the verdict is tainted, he should try to cure the defect by molding the verdict to be consistent with the jury’s intent. Most often, it is not clear what the jury’s intent is. Judge not only determines whether the conduct was improper, but whether the error is so serious that verdict must be overturned.
McDonough Power Equipment (CB1077): Juror makes an honest mistake during voir dire. Is this enough to overturn the verdict?
No. Must show that a correct answer would have provided a valid basis to challenge the juror’s placement on the jury. Or, must show that the juror was subsequently biased against the party in order to invalidate the verdict.
What evidence may be used to show jury misconduct?
Mansfield Rule- no juror may testify as to what occurred in jury deliberations. There can be no juror affidavits about deliberations to attack the verdict.
Exception: If an outsider “overhears” the deliberations, he can testify to them since he is not a member of the jury.
Rationale: Sanctity of jury deliberations/Chilling effect
We want jurors to argue without the coercive influences of outsiders (lawyers, judges etc.)
They can be free to discuss the case without fear that they will be corrected or investigated afterwards (threats from losing party).
If they were watched or checked, they may say things they otherwise wouldn’t.
If ask jurors afterwards, a juror may change his mind and say something else when asked.
Stability of verdicts: do not want prolonged litigation of verdicts.
Benefits: Jury deliberation is not a scientific process. There is no way to ensure that they are operating properly.
We don’t want to know what they are doing anyway. (What jury verdict could withstand scrutiny?)
Jury nullification: we want the uncertainty – jurors “doing justice.” Sometimes juries completely disregard the law, and we want that in some situations.
E.g. Price – He will never get another job, and the employer is responsible for his injuries. Workers comp schedules are out of date, and the only way he will get a decent recovery is to get full recovery. Ignore the law.
OR, Price is a sissy. I could work through the pain. Ignore the law.
Iowa Rule: Allows juror affidavits regarding extrinsic/overt acts, which can be corroborated and proved, but does not allow them regarding intrinsic acts, which involve delving into the jurors’ thought processes.
“Overt acts” include access to improper information or disregarding the judge’s instructions, and using an improper method to reach the verdict (majority instead of unanimous; quotient rule etc). Can provide physical evidence corroborating the affidavit.
Mansfield Rule is still the rule in most states, with a 606(b) exception for juror testimony.
Compare with 606(b), which would NOT allow evidence regarding improper methods of reaching a verdict because it has to do with jury deliberations.
Federal Evidence Rule 606(b)- Allows the use of juror affidavits to testify as to outside influence or use of extraneous prejudicial information. Still does not allow affidavits regarding jurors’ mental processes or deliberations.
Rationale: Price of Mansfield Rule is high: It is impossible to find out what is going on, and therefore, impossible to impeach a jury’s verdict. P did not get a fair trial
“Extraneous information” includes both outside information from parties as well as a jury member’s specialized knowledge. Mere submission does not mean that the verdict is automatically overturned. It must be shown that the information was prejudicial.
Juror mar testify as to this extraneous information, but judge decides if the information is prejudicial (cannot have affidavits as to the prejudicial effect on jurors since that would be an inquiry on juror’s actual deliberations).
Exception for “outside influence:” bribes or coercion. Do not need to show that they were prejudicial; they are considered to be inherent threats to the fairness of the system.
Cooper: flaw in statute – no allowance for juror-juror intimidation
Administration of a 606(b) exception for prejudicial information: What constitutes prejudicial information?
Draw the line only at external inquiry. Easy to administer and communicate to jury clearly.
Easier to discount a juror’s prior experience because it is probably not as authoritative as one’s own research.
If there is deliberate outside influence, then it is much more likely that there will be an inquiry into the verdict.
How to determine if a juror was prejudicially-influenced? Nature of the conversation, and whether juror might be prejudiced.
In some cases. presume prejudice? (e.g. unexplained contact with parties’ attorneys or witnesses?)
Questions of law (judge) vs. Questions of fact (jury)
Stare Decisis: Do jury verdicts apply in future cases? Is using the verdict a question of law or fact?
Jury verdicts aren’t binding or admissible in future cases.
But, we do want some consistency between verdicts. Don’t want similarly situated P’s or D’s to be treated differently.
Contract interpretation -question of law or fact?
Dobson w. Masonite Corp (CB964): Was the oral contract for cutting down trees (services) or sale of timber (cannot have an oral agreement)?
There is no dispute about the existence of a contract or its terms. If there was a dispute, it would be a question of fact.
– How would you decide the terms? Look at their behavior during the course of the contract.
– If D is buying trees, it is an odd way of paying for the trees (by clearing the land and selling the timber). Is this the way you usually structure a deal?
• But, what did the parties mean by certain terms? Look at custom and trade meaning? (But should we use trade usage when dealing with someone not in the trade?) This is a question of fact what was the intention of the parties.
What were the parties thinking about? Must ask: what would they have thought if they had thought about it? [statute of frauds]
– Maybe juries have a community sense of what ordinary people would have thought.
– Most people have an instinctive sense that they should get certain agreements in writing. If it’s not in writing, what does that say about the nature of the contract?
– How did they get together in the first place? Did D offer his services to M, or did M put an ad in the paper: `trees for sale?’
In sum: (HB497)
– What did the parties intend? (Interpretation is a question of fact- Jury determination.)
Does a contract exist?
If there is an oral contract, jury will decide what the terms are.
If the writing of the contract is ambiguous, then the jury decides what its meaning is. (Look at questions of historical fact.)
What is the legal effect of their intention (Law)
Judge decides whether the contract is ambiguous or not. (Judges give themselves the power to decide the determinate question.)
If the conract is not ambiguous, then application of contract terms is a question of law.
Davis v. John Hancock (Supp14): D dies of a heroin overdose, and family sues insurance company for benefits resulting from “accidental death.”
The language of the policy is clear. Argue over whether suicide (from self-inflicted overdose) is an accidenta1 death? (Bring in experts over the nature of suicide)
E.g., environmental or discrimination issues
Important in the context of the case.
“Obvious” errors: what constitutes?
An aspect of the law you would expect the judge to know without the help for the parties. However, if this error is harmless, still will not reverse.
Conversely, if the law is arcane, maybe wouldn’t expect judge to know.
If you didn’t object, all is not lost:
Should object/request anyway. Maybe the court will just let it go.
If the omission is really important, it may constitute a “fundamental” error.
But, if the court denies your request, you’re out of luck. Rule 51 blocks appeals unless the counsel has OBJECTED.
You do not need to renew your request by objection in order to preserve your right to appeal if the court record shows that the judge has considered and rejected your request.
Jury Fact “Finding” (Rule 49: Special Verdict, General Verdict + Interrogatories)
Rule 49 (HB 549): Up to the judge’s discretion to use, and he cannot be overruled on his use or nonuse.
Special verdict: Jury must return a written finding on each issue of fact that the judge gives to them. Judge then applies the law to these findings.
General verdict: Jury returns a general verdict, but must also answer interrogatories on one or more issues of fact.
Advantages to Rule 49:
Law Protecting: juries are supposed to decide on factual questions only. Takes away their ability to have sympathetic decision for the P or D. Protects the rule of law. Take away their law application function.
Illumination: Throws off the “cloak of secrecy” of jury deliberations. Allows more judicial control of juries.
Unanimity: SV strengthens the concept of unanimity, because it is more difficult to go along with a SV than a GV.
Fact-Finding: Enhance this function by leading jury to the path of decision.
Avoidance: Makes jury deliberations more scientific, and makes them decide on each question, instead of avoiding issues. Enhance the rationality of jury deliberations.
Preclusion: Allows the judge to know what the jury based its decision on, and therefore can make a better determination as to whether there was an error, and if the error was harmless or not. It also allows for retrial only on incorrectly decided issues.
Efficient: May not have to give a jury instruction, thereby eliminating an entire step of trial process and a potential source of error.
Collateral Estoppel: Once an issue has been litigated and decided, the answer is binding in future lawsuits involving the parties. The more information we have, the better.
Disadvantages to Rule 49 (Judges do not use it very often):
Juries represent the “common man:” sometimes we want them to disregard the law, and consider more than logic (jury nullification)
Harder to be unanimous on each individual issue, than on entire verdict. What kind of detail do we really want them to be unanimous about?
Grace Lines (Supp 24): Don’t need everyone to agree with the verdict, if you can get them to go along with it for sake of unanimity. (In this case, juror said she agreed with the verdict, “only insofar as it had to be unanimous”)
Or, if the jurors agree on the outcome, but for different reasons. For example, all agree that D is negligent, but for different reasons (too fast, went through red light, not paying attention). Outcome with a SV depends on how you frame the question: “Was D negligent?” or “Was D driving too fast?”
Very hard to find preponderance of the evidence for each question then preponderance of the evidence overall. Rule 49 does not help jury’s fact-finding process, it interferes by narrowing the process down to a science and the finer points of a decision. Maybe we just want a general reaction. (Why rarely used: if used, mostly in complex litigation, or when judge wants to confine the jury to the law).
Hard to identify and frame each fact issue to the jury.
Do we really want to know what they have done? What if the answers are inconsistent with each other?
Nollenberger v. United Airlines (CB 1034): Judge asked the jury to return a GV + I. Jury gave answers that were consistent with each other, but inconsistent with the GV. Plaintiff wanted the court to submit additional interrogatories after the jury returned verdict, but Rule 49(b) does not allow for this option.
– Courts have the responsibility under Rule 49(b) to reconcile answers and verdict to find consistency.
– When the answers are consistent with each other, but inconsistent with the GV, then the judge may (1) enter judgment consistent with the answers, notwithstanding the GV, OR (2) he may return the jury for further deliberations, OR (3) he may order a new trial. Judge should try to reconcile the two before entering a verdict on the interrogatories alone.
– When the answers are inconsistent with each other, and inconsistent with the GV, then judgment will not be entered, but the judge may (1) return the jury for further deliberation, OR (2) order a new trail.
– Cooper: what if the answers are inconsistent with each other, but all are consistent with the GV??
