CIVIL PROCEDURE CLASS 28

1. CIVIL PROCEDURE CLASS 28 Professor Fischer Columbus School of Law The Catholic University of America October 24, 2005

2. CIVIIL JURY TRIALS • Procedure at trial

3. CIVIL JURY TRIALS • After choosing a jury, the procedure is usually as follows (depends on local rules) • 1. Ps opening statement (usually goes first) • 2. Ds opening statement (option to do this after P’s direct evidence) • 3. P presents direct evidence (D can cross-examine) • 4. D may move for a directed verdict • 4. D presents direct evidence (P can cross-examine) • 5. P presents rebuttal evidence • 6. D presents rebuttal evidence • 7. P or D may move for a directed verdict. Assuming no successful directed verdict motion, closing arguments (usually P speaks first and last) • 8. Jury instructions (judge could also instruct in beginning and at end)

4. BENCH TRIALS • Less formal procedure than jury trials

5. EVIDENCE: RULE 43 • Types of evidence includes . . . :?? • Elaborate rules of evidence apply to determine what is and what is not admissible • There are Federal Rules of Evidence • Many states follow these federal rules

6. BIG PICTURE: Judicial Control of Juries in Jury Trials- • 1. Jury Instructions • 2. Special Verdicts • 3. Bifurcation/Trifurcation • 4. Remittitur/Additur • 5. J.N.O.V. • 6. Order for New Trial • 7. Order to Vacate Judgment

7. JURY INSTRUCTIONS (Rule 51) • What is a jury instruction? • When are jury instructions given?

8. CLOSING ARGUMENTS • Because evidence is presented in a piecemeal fashion, it is hard for the jury to get a coherent picture of the case • The purpose of closing arguments is to give the jury such a coherent picture of one party’s case

9. JURY DELIBERATIONS • Jury retires to deliberate, usually under the supervision of the bailiff • In civil cases, jurors usually are permitted to leave for the night. • However, when jury deliberations are recessed, the judge will tell the jury not to discuss the case to anyone and not to read media coverage of the case

10. VERDICTS • What is a general verdict? • What problems are there with general verdicts? What other types of verdicts are allowed under the FRCP?

11. Should Rule 49 be rejected • Justices Black and Douglas thought so • “but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments”

12. JURY DEADLOCK • What happens if the jury cannot agree on a verdict?

13. BENCH TRIAL • Findings of Fact (R. 52)

14. BIFURCATION • FRCP 42(b) • Bifurcation: liability and damages • Trifurcation: causation, liability, and damages • What should a court take into consideration in determining whether to bifurcate a trial? • Must birfucated trials be tried before the same jury? • What are the advantages of bifurcation? • What are the disadvantages of bifurcation?

15. REMITTITUR/ADDITUR • What is remittitur? • What is additur? • Is remittitur constitutional? Why or why not? • Is additur constitutional? Why or why not?

16. JNOV • What is a JNOV? • Advantages/ disadvantages over directed verdict

17. IS A J.N.OV. CONSTITUTIONAL? • Remember Amendment VII: “No fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of common law.” • The U.S. Supreme Court has held that there was a common law analogue to the directed verdict but no DIRECT common law analogues for the j.n.o.v. • So is a J.N.O.V. constitutional? Why or why not?

18. SAVING LANGUAGE IN RULE 50(b) • “If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion.”

19. NEW TRIAL MOTIONS • FRCP Rule 59 • You should know the time limits for making a motion for a new trial. Can a judge grant a new trial on its own initiative? In what circumstances? What time limits apply? See FRCP 59(d). • What are the grounds for granting a motion for a new trial?

20. GROUNDS FOR GRANTING A NEW TRIAL INCLUDE: • Judge realizes he mistakenly admitted evidence over correct objection • Newly discovered evidence • Judge realizes she wrongly instructed jury over correct objection (see FRCP 51) • Verdict against the weight of the evidence • Excessive/inadequate verdict (see remittitur/additur above)

21. ADDITIONAL GROUNDS FOR NEW TRIAL • Improper conduct by counsel or judge • Jury misconduct (e.g. verdict not unanimous/inconsistent) • When can misconduct in a jury’s deliberations be grounds for a new trial? To what extent is what is said in the jury room admissible? See Fed. R. Ev. 606(b)? • Do you agree that Fed. R. Ev. 606(b) strikes an appropriate balance? See p. 510 CB

22. MOTIONS TO VACATE JUDGMENT • What is the difference between a MOTION TO VACATE JUDGMENT and a NEW TRIAL MOTION? • Grounds for MOTION TO VACATE JUDGMENT • Timing restrictions

23. DEFAULT JUDGMENTS • Rule 55 • Difference between entry of default 55(a), default judgment 55(b) • How can entry of default be set aside? How can judgment by default be set aside? See 55(c)