The Role of Judge & Jury. What reasonable jurors can’t believe. “Exclusive ” Standard of Review:. When reviewing legal sufficiency , we consider only the evidence that tends to support the jury’s verdict, and disregard all contrary evidence
What reasonable jurors can’t believe
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)
Kroger v. Suberu
2006 WL 1195331 (Tex. 2006)
Case– malicious prosecution
Evidence– P never used a shopping cart
Verdict– for P: $79,000
Reversed– legally insufficient evidence D was malicious rather than mistaken
Minnesota Life v. Vasquez,
2006 WL 889724 (Tex. 2006)
Case– deceptive insurance practice
Evidence– Autopsy: seizure and fall
Policy– accidental death but not disease
Verdict– for P: $347,000
Reversed– Autopsy legally insufficient to show coverage was reasonably clear
Wal‑Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006)
Evidence– six-pack ring directly behind store employee for 30‑45 seconds
MSJ affirmed– too little time to conclude employee should have known of hazard
Dew v. Crown Derrick Erectors, 2006 WL 1792216 (Tex. 2006)
Case– fall thru unguarded manhole
Evidence– contractor roped off area, somebody removed the rope
Verdict– for P: $14.5 million (20% Crown)
Affirmed– legally insufficient evidence D absolved by new & independent cause
P: I had the green light D: I had the green light
Yes, of course Jury Decides Who to Credit
P: [silent] D: [silent]
No, of course not Directed verdict for D
P: I had the green light. D: [silent]
P verdict: Yes D verdict: Probably Clear, positive, direct, credible, consistent, & controvertible?
P: [silent] D: I had the green light.
P verdict:No Disbelief is not evidence
P: I didn’t see the bus. D: 80% of the buses are ours.
No. “[T]he plaintiff will lose; in fact, the case is unlikely to reach the jury.”Charles Nesson, The Evidence or the Event?, 98 Harv.L.Rev. 1357, 1378‑79 (1985) Gary Wells, Naked Statistical Evidence of Liability, 62 J. Pers. & Soc. Psychol. 739 (1992)
[T]he Wilsons had to prove not that the City might have disbelieved the engineers' reports, but that it did. This requires evidence of “objective indicia of intent” showing the City knew identifiable harm was occurring or substantially certain to result. Jurors’ doubts about the engineers’ reports or the City's motives could not supply them with objective indicia that the City knew flooding would occur. Constitutional concerns about the roles of judge and jury do not allow either to make such evidence up.
P: “I am 80% sure the bus was Blue.”
It is theoretically possible, and sometimes not far from actual fact, that five members of the Supreme Court will conclude that the evidence supporting a finding of a vital fact has no probative force, and … in effect, that
are not men of “reasonable minds.”
“No Evidence” & “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361 (1960)
Only an incompetent or a willful judge would take a case from the jury when the issue should be left to the jury. But… judges of competence and conscience have in the past, and will in the future, disagree whether proof in a case is sufficient to demand submission to the jury. The fact that [one] thinks there was enough to leave the case to the jury does not indicate that the other [is] unmindful of the jury's function.
The easy but timid way out for a trial judge is to leave all cases tried to a jury for jury determination, but in so doing he fails in his duty to take a case from the jury when the evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge.
Wilkerson v. McCarthy, 336 U.S. 53, 65 (1949) (concurring)