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Chapter 7


This Chapter examines the mechanics of trials, both jury and non-jury. The most important concepts in this Chapter are:

  • Two meanings of “burden of proof”: There are two kinds of “burden of proof which a party may have to bear. Assuming that the issue is called A:
    • Burden of production: The party bears the “burden of production” if the following is true: unless the party produces some evidence that A exists, the judge must direct the jury to find that A does not exist.
    • Burden of persuasion: The party bears the “burden of persuasion” if the following is true: at the close of the evidence, if the jury cannot decide whether A exists or not, the jury must find that A does not exist.
  • “Preponderance” standard generally: The usual standard of proof in civil actions is the “preponderance of the evidence” standard. A proposition is proved by a preponderance of the evidence if the jury is convinced that it is “more likely than not” that the proposition is true.
  • Summary judgment: If one party can show that there is no “genuine dispute of material fact” in the lawsuit, and that she is “entitled to judgment as a matter of law,” she can win the case without going to trial. Such a victory without trial is called a “summary judgment.”
  • Trial without jury: A case will be tried without a jury if either of the two following conditions exists: (1) No right to a jury trial exists; or (2) All parties have waived the right to a jury trial.
    • Appellate review: When a case is tried to the judge (who thus acts as fact-finder), the trial judge’s findings of fact will be set aside on appeal only if they are “clearly erroneous”
  • Jury trials:
    • Unanimity: The verdict of a federal civil jury must be unanimous, unless the parties stipulate otherwise. FRCP 48. But most states allow a less-than-unanimous civil jury verdict.
    • Jury selection: The process by which the jury is selected is called the “voir dire.” Any juror who is shown through the voir dire to be biased or connected to the case must be dismissed upon motion by a party (dismissal “for cause”). In addition to the jurors dismissed for cause, each party may dismiss a certain number of other prospective jurors without showing cause for their dismissal (“peremptory challenges”).
  • Directed verdict: In both state and federal trials, either party may move for a directed verdict. Such a verdict takes the case away from the jury, and determines the outcome as a matter of law. (In federal trials, the phrase “directed verdict” is no longer used—instead, a party moves for “judgment as a matter of law.”)

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