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The Judge and the Jury, Part Two

Thus, by requiring the motion before the jury goes out in order to preserve the right to move for judgment after the verdict, the rule prevents a party from “sandbagging” his opponent by raising defects in the opponent’s evidence after the jury has been discharged, when it is too late to cure those defects. It may be frustrating to a careful lawyer to be forced to help a less perceptive opponent make his case by pointing out those defects. However, remember that the entire thrust of the Rules is to ensure that suits are determined on the merits, not on the procedural skills of counsel.[5]


The judge may also deprive a party of a verdict by granting a new trial under Fed. R. Civ. P. 59. Unlike the motion for judgment as a matter of law, which leads to a judgment for the moving party, the grant of a new trial does not end the case but leads to a second trial on all or part of the case.

There are two general categories of cases in which the courts have traditionally granted new trials. The first is for errors in the trial process. Every litigant is entitled to “due process of law,” including a fair trial procedure, before his rights are determined. Any number of mistakes may be made in the course of trial, such as the improper admission or exclusion of evidence, improper instructions by the judge as to the legal principles the jury must apply, or juror contacts with witnesses outside the courtroom. Errors of this sort may taint the jury’s decision-making process, leading it to consider inappropriate information in reaching a verdict or to use the wrong rules of law in assessing liability or damages. See, generally, James, Hazard, and Leubsdorf (6th ed. 2011) at §§11.26-11.27.

If the losing party moves for a new trial on the basis of such errors immediately after trial,[6] Rule 59 allows the judge to vacate the verdict and order the case retried in order to assure the parties a fair trial procedure. If the judge refused to grant a new trial despite substantial errors at the trial, the party prejudiced by the error would doubtless appeal, the appellate court would reverse, and a new trial would be ordered anyway, after much additional effort and expense. The judge can save this effort and expense by ordering the new trial himself if he is convinced that there was prejudicial error in the first trial.

In addition to new trials for procedural errors, the trial judge has traditionally had the power to grant a new trial if he believes the trial process was fair but the result is clearly wrong. The federal cases suggest various (but quite similar) standards for granting a new trial based on a dubious outcome. It is said that the judge may grant a new trial if the jury’s verdict is “against the ‘clear weight,’ ‘overwhelming weight,’ or ‘great weight’ of the evidence” (Goldsmith v. Diamond Shamrock Corp., 767 F.2d 411, 416 (8th Cir. 1985)); when it is “quite clear that the jury has reached a seriously erroneous result” (Lind v. Schenley Industries, Inc., 278 F.2d 79, 89 (3d Cir. 1960)); or when a new trial “is necessary to prevent injustice” (Whalen v. Roanoke County Board of Supervisors, 769 F.2d 221, 226 (4th Cir. 1985)); see, generally, Wright and Miller §2806. Under such formulas the judge cannot displace the verdict simply because he disagrees with the jury. But he may order a new trial in cases in which the evidence is strong enough to rationally support the jury’s verdict, but he believes that verdict is seriously erroneous (represented, perhaps, by point Q on the diagram in the last chapter, p. 497). The difference in the judge’s role in passing on motions for new trial and motions for judgment as a matter of law is illustrated in Figure 25-2 on p. 523.

[5]. Despite this reasoning, many states do not follow the federal practice of requiring a directed verdict motion to preserve the right to seek j.n.o.v. See Friedenthal, Kane, and Miller, p. 581.
[6]. The motion for new trial, like the Rule 50(b) motion for j.n.o.v., must be filed within twenty-eight days of entry of judgment. Fed. R. Civ. P. 59(b).

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