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The Judge and the Jury, Part Two


The Judge and the Jury, Part Two

Whose Case Is This, Anyway?


A misguided minority of law students think that civil procedure is dull, but in truth it is full of surprises. You may well have been surprised to learn from the last chapter that a judge may snatch a case from the jury in the middle of trial by entering judgment as a matter of law. It is perhaps even more surprising that the judge may actually allow the jury to deliberate and reach its verdict on the evidence but refuse to enter judgment on the verdict rendered. At first blush this seems the ultimate affront to the jury system, for the judge to allow the jury to go through the entire trial process and reach its decision, and then disregard or reverse it. Yet, as we shall see, there are good reasons to allow the judge to do so.

Traditionally, the judge has had the authority to displace the jury’s verdict by entering a “judgment notwithstanding the verdict,” or j.n.o.v.[1] The j.n.o.v. motion is essentially a delayed (or, more accurately, renewed) motion for a directed verdict. The standard for granting the j.n.o.v. motion is the same as that for directing a verdict: Either motion will be granted if the opponent’s evidence is so weak that no reasonable jury could have reached a verdict for him. Of course, when the losing party moves for j.n.o.v. after the jury’s verdict, a jury has found for the opposing party. Thus, the j.n.o.v, motion asserts that the jury acted irrationally, in disregard of the evidence in reaching a verdict for the party opposing the motion.

The j.n.o.v. motion has long been a fixture of trial practice in both the state and federal courts. However, the 1991 amendments to the Federal Rules changed the name of the j.n.o.v. motion: It is now called a motion for judgment as a matter of law, the same as the Rule 50(a) motion made during trial to take the case away from the jury. See Fed. R. Civ. P. 50(b). Again, the change in the name makes sense because it emphasizes that the motion after verdict asks the judge to do exactly the same thing that the motion during trial does: take the case from the jury to prevent an irrational result. Again, as with the earlier motion, the new wine really is the same vintage as the old. The motion for judgment as a matter of law after verdict is the functional equivalent of a motion for j.n.o.v. And, again, the j.n.o.v. terminology persists in most state courts, so you will have to use both terms in practice. In this chapter, I will use the federal terminology. However, because the same name refers to both the pre-verdict and post-verdict motion, I will indicate in parentheses whether I am referring to a motion made before the case goes to the jury (d.v.) or after the verdict (j.n.o.v.).

[1]. J.n.o.v., or judgment “non obstante veredicto,” is Latin for judgment notwithstanding the verdict. The two terms are used interchangeably in practice.

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