1. CIVIL PROCEDURE CLASS 25 Professor Fischer Columbus School of Law The Catholic University of America October 23, 2002

2. 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).

3. 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

4. Batson Rule Extended to Gender- Based 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.)

5. 2 KINDS OF CIVIL TRIALS Jury Trials Bench Trials (Trial By Judge Alone)

6. 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 t

7. 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)

8. 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!

9. 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

10. 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?

11. 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

12. 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

13. 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?

14. 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

15. 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

16. JURY DEADLOCK What happens if the jury cannot agree on a verdict?

17. 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?

18. REMITTITUR/ADDITUR What is remittitur? What is additur? Is remittitur constitutional? Why or why not? Is additur constitutional? Why or why not?

19. 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?

20. 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.”

21. 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?

22. 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).

23. 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)

24. 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