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The Judge and the Jury, Part One

In addition, the change in terminology in Rule 50(a) only applies to the federal courts. State courts allow the judge similar latitude to control the jury, but most still use the “directed verdict” terminology. Thus, you may have to adjust to the schizophrenic need to make the same motion in federal court under one name and in state court under another. In this chapter I will generally use the term “judgment as a matter of law,” since much of the discussion focuses on the federal rule, Fed. R. Civ. P. 50(a).


As Figure 24-2[5] indicates, the plaintiff in a civil case presents her evidence first at trial. She has the burden during her case-in-chief to produce enough evidence on each element of her claim to pass the X line and reach the jury. Frequently, the defendant will move for judgment as a matter of law at the close of the plaintiff’s evidence, on the ground that that evidence does not cross the X line, that is, it does not satisfy the plaintiff’s burden to produce credible evidence in support of each element of her claim. If the judge agrees that the plaintiff has not produced enough evidence to support a rational verdict in her favor, she may withdraw the case from the jury by entering judgment as a matter of law for the defendant at this point.

If the judge denies the motion, the defendant will present her evidence to rebut the plaintiff’s case or to establish affirmative defenses. After the defendant rests she may move again for judgment as a matter of law. When the motion is made at this point it challenges the sufficiency of all the evidence, both plaintiff’s and defendant’s, to support a verdict for the plaintiff. As the diagram indicates, the plaintiff may also move for judgment as a matter of law at this point, though not at the close of her own case.

Two Fundamental Questions

1. Why may the defendant, but not the plaintiff, move for judgment as a matter of law at the close of the plaintiff’s case?

2. What will happen next if the judge grants the defendant’s motion at the close of the plaintiff’s case?


Because the judge risks encroachment on the role of the jury in taking the case away from it, it is important to have a clear picture of just where the X and Y lines fall. Unfortunately, while it is easy to draw diagrams conceptualizing the parties’ burdens of production, it is a great deal harder to articulate a clear and workable standard for deciding when the evidence crosses those lines. Federal Rule 50(a)(1) specifies that judgment as a matter of law may be entered “where a reasonable jury would not have a legally sufficient evidentiary basis to find for” the nonmoving party. However, this really just poses the question of when the evidence is legally sufficient, rather than providing an answer.

[5]. The diagram and the accompanying discussion are a bit oversimplified. For example, after the close of the defendant’s case, the court will often allow the plaintiff to re-open her case to offer rebuttal testimony.

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