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  • Standard for granting: Generally, the court will direct a verdict if the evidence is such that reasonable people could not differ as to the result.
  • New trial: The trial court, in both state and federal courts, may grant a new trial.
    • Harmless error: A new trial may not be granted except for errors in the trial which are serious enough that they affect the substantial rights of the parties. FRCP 61. This is the so-called “harmless error” doctrine.
  • JNOV: Most states allow the judge to set aside the jury’s verdict, and enter judgment for the verdict-loser. This is called a Judgment Notwithstanding the Verdict, or JNOV. In federal practice, the device is called “judgment as a matter of law” (JML).
  • Constitutional right to jury trial: The Seventh Amendment provides that “in suits at common law … the right of trial by jury shall be preserved.” This means that there is a federal jury trial right as to “legal” claims.
    • No state application: The Seventh Amendment does not apply to state trials, only federal ones. So states may abolish jury trials in some or all civil cases.
    • Equitable claim: Even in a federal case, there is no jury trial right as to “equitable” claims (e.g., a claim for injunction).


A. Two meanings of “burden of proof”: To say that a party bears the “burden of proof with respect to a particular issue, A, can mean either of two very different things:

1. Burden of production: It can mean that unless he produces some evidence that A exists, the judge must direct the jury to find that A does not exist. The party in such a situation is said to bear the “burden of production” James & Hazard, p. 340.

2. Burden of persuasion: Or, it can mean that if at the close of the evidence, the jury cannot decide whether A exists or not, it must find that A does not exist. The party seeking to prove A in this situation is said to bear the “burden of persuasion” or the risk of non-persuasion. James & Hazard, p. 314.

B. Factors in allocation: The allocation of both burdens to one side or the other depends on many factors—there is no simple test. Among the factors considered are (1) who has “the better access to the fact in question”, and (2) who is alleging something that “departs from what would be expected in the light of ordinary human experience.” James & Hazard, p. 324.

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