CIVIL PROCEDURE CLASS 27 Professor Fischer Columbus School of Law The Catholic University of America October 24, 2005

WRAP UP: SUMMARY JUDGMENT Form of pretrial adjudication Shifting burdens of production on motion depending on whether moving party bears burden of production at trial

APPEALABLITY OF SJ ORDERS Order denying motion Order granting motion

MOTION FOR JUDGMENT AS A MATTER OF LAW Also called “directed verdict” Compare to summary judgment motions

PENNSYLVANIA RR v. CHAMBERLAIN (1933)

HYPO Assume that Bainbridge claimed to be standing right next to where death occurred and testified to having directly witnessed the collision, but D presented 25 witnesses, including a busload of visiting priests, who contradicted Bainbridge’s story. Should the court direct a verdict for the RR?

COMPARE DIRECTED VERDICT AND SJ MOTIONS Why are courts often more reluctant to grant summary judgment than judgment as a matter of law under Rule 50(a)?

IS A DIRECTED VERDICT CONSTITUTIONAL? The Seventh Amendment to the U.S. Constitution provides:In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

IS A DIRECTED VERDICT CONSTITUTIONAL? The U.S. Supreme Court has ruled that the use of a directed verdict motion does comport with the Seventh Amendment (Galloway v. U.S., 319 U.S. 372 (1943)).

IS A DIRECTED VERDICT CONSTITUTIONAL? Why? Because the Seventh Amendment just PRESERVES the right to trial by jury where originally available in suits at common law (as at 1791 – date of Seventh Amendment’s ratification), and, according to the Supreme Court, common law historically had a procedure by which judge could determine that the evidence was insufficient for the jury to consider it. We’ll consider the right to jury trial in civil actions in greater detail later

Rule 40: Assignment of Cases for Trial District court can formulate its own rules for placing cases on the trial calendar

FACTFINDER The factfinder in a civil trial can be either a jury or the court (the judge). We will later learn the rules for when there is a right to civil jury trial under the Seventh Amendment Sometimes judge uses an advisory jury whose views are not binding like a regular jury. What is the smallest possible size for a jury in a federal civil action? What’s the applicable rule?

JURY SELECTION: BIG PICTURE Jury procedures attempt to uphold the constitutional guarantee in the Due Process Clause that all civil litigants shall have a fair trial This requires a fair and impartial jury.

VOIR DIRE (FRCP 47) What’s a voir dire? Who conducts the voir dire? What are the two types of challenges that can be made to jurors in federal court? When can each be made? How many such challenges can be made?

Number of Challenges Challenges for Cause: unlimited (Rule 47(c ) Peremptory Challenges (Rule 47(b) and 28 U.S.C. § 1870) 3 for each party (generally) – see CB p. 456

Race and Peremptory Challenges Can a peremptory challenge be used to exclude a juror on the basis of race? Cite authority for your answer.

Challenging Peremptory Challenges (Batson test) What should a party/attorney do if s/he believes that a peremptory challenge is based on race? Is the Batson test effective?

Batson Rule Extended to Gender- Based Peremptory Challenges 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.)

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: RULE 43 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

BIG PICTURE: Judicial Control of Juries in Jury Trials- 1. Jury Instructions 2. Special Verdicts 3. Bifurcation/Trifurcation 4. Remittitur/Additur 5. J.N.O.V. 6. Order for New Trial 7. Order to Vacate Judgment

JURY INSTRUCTIONS (Rule 51) What is a jury instruction? When are jury instructions given?

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?