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The Judge and the Jury, Part One


The Judge and the Jury, Part One

Judgment as a Matter of Law (Directed Verdict)


Every good citizen knows that the Constitution guarantees “the right to trial by jury.” However, a good part of the civil procedure course is devoted to studying various hurdles that stand between the litigant who demands jury trial and actual jury decision of the merits of her case. As the last chapter demonstrates, the plaintiff’s case may be cut short by a motion to dismiss under Rule 12(b)(6), which allows the judge to enter judgment for the defendant on the ground that the plaintiff’s complaint does not state a legal claim for relief. If the plaintiff’s case survives a Rule 12(b)(6) challenge, it may still meet an early demise on a motion for summary judgment if the judge concludes that there is “no genuine dispute as to any material fact” for the jury to consider.

Although these two motions may preclude the parties from obtaining a jury trial, they are justifiable, since both are based on the premise that there is really nothing for the jury to do. It comes as more of a surprise to students to learn that even after the beginning of trial and the presentation of evidence the judge may still snatch the case from the jury or, even more invasively, allow the jury to render a verdict and then enter judgment for the party who lost the jury verdict. This chapter and the one that follows are intended to help you understand several devices that the judge may use to control the jury’s decision-making process: judgment as a matter of law and new trial.


In order to understand these devices, it helps to have a preliminary understanding of the plaintiff’s burden to produce evidence at trial in support of her claim. Figure 24-1[1] represents varying degrees of evidence in support of the plaintiff’s claim. At the extreme left is the case in which the plaintiff produces no evidence to prove a challenged element of her claim; as you move to the right along the line the strength of the plaintiff’s evidence increases. The X line on the diagram indicates the point at which the plaintiff has produced evidence that is sufficiently persuasive that a jury, acting rationally, could find that she has proved each element of her case. If the plaintiff’s evidence crosses this line, she is said to have satisfied her burden of production. Even though the judge may consider the plaintiff’s evidence weak or less persuasive than the defendant’s, if the evidence is sufficient to cross the X line the case falls in the realm of legitimate difference of opinion and must go to the jury for decision.

[1]. A similar diagram in Landers and Martin, Civil Procedure (1981) was used, with permission, as the basis for this diagram.

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