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The Judge and the Jury, Part One

 The traditional device for taking the case from the jury has been the “motion for a directed verdict.” Under early procedure, the judge actually did “direct” the verdict: If she concluded that the evidence was too weak to support a verdict for the plaintiff, she ordered the jury to go out and come back with a verdict for the defendant.[4] Eventually, this pro forma (if not demeaning) procedure was dropped; instead, the judge would “direct the verdict” for the defendant herself, and the case would not go to the jury at all.

In truth, this practice does not involve a “verdict” at all, which connotes a jury’s finding of facts. However, the motion is still called a motion for a “directed verdict” in many state courts. The “directed verdict” terminology was also used in the federal courts until 1991, when the federal rule-makers changed the name without altering the substance of the motion. Now, in the federal courts, a party seeking to have the judge take the case from the jury on the ground that the evidence is too weak to support a verdict makes a “motion for judgment as a matter of law.” Fed. R. Civ. P. 50(a)(1)(B). This is a good name for the motion for several reasons. First, it eliminates any implication that the jury has a role in the decision: As under directed verdict practice, if the judge grants the motion, the jury is discharged without deliberating or deciding anything. Second, the new name emphasizes that the judge, in theory, does not resolve factual issues when he withdraws the case from the jury but makes a legal judgment that the evidence is so lopsided that there really is no meaningful factual dispute for a jury to consider.

However, the change in terminology will create some confusion. The federal courts have developed a good half-century of “directed verdict” case law. Lawyers—like you—who will practice under the current rule must understand that the motion for judgment as a matter of law really is old wine in a new bottle. The rulemakers have not changed the substance of Rule 50(a). They did not change the fact that the judge makes the decision, rather than the jury. They did not change the standard for taking the case away from the jury. Thus, the case law under prior Rule 50(a) is still authoritative on most aspects of the motion.

[4]. See W. Blume, The Origin and Development of the Directed Verdict, 48 Mich. L. Rev. 555, 582 (1950). For a curious example of this practice, see Cahill v. Chicago, Minneapolis & St. Paul Ry. Co., 74 F. 285 (7th Cir. 1896), in which the judge ordered the jury to return a verdict for the defendant and one juror refused to do it. The court of appeals was not pleased with such recalcitrance:
The conduct of the juror in this instance was in the highest degree reprehensible, and might well have subjected him, and any who encouraged him to persist in this course, to punishment for contempt. His conduct was in violation of law, subversive of authority and obstructive of the orderly administration of justice.
74 F. at 290. (Really, court, lighten up a little!)

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