Chapter
12
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Chapter
12 |
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TRIAL PROCESS
[1] Purposes
The overarching aim of the pre-trial conference is to more efficiently manage the course of a lawsuit. To that end, the pre-trial conference seeks to:
(1) clarify issues.
(2) control, expedite and reduce the waste of pretrial litigation generally.
(3) facilitate settlement.
[2] Procedures for Pretrial Conferences
FRCP 16 authorizes one or more pretrial conferences in the judge’s discretion. When only one pretrial conference is held, it is usually scheduled after the completion of discovery, shortly before trial, at which point the parties are to specify issues and evidence and to amend the pleadings.
FRCP 16(b) requires the judge to enter a scheduling order within 90 days after the appearance of a defendant or 120 days after the complaint is served, setting time limits for joinder and amendment, motion practice, and completion of discovery, and (optionally) setting the dates for mandatory discovery, pretrial conferences, and trial, subject to modification for good cause.
Usually the parties will be asked to submit pretrial briefs in which parties state the undisputed facts, identify the disputed facts, summarize legal contentions, and list trial witnesses and exhibits. The parties may also be required to make authenticity objections to proposed trial exhibits and be invited to raise other evidentiary objections that could be ruled upon before trial.
[3] The Pretrial Order and Its Effect
FRCP 16(e) requires the court to enter an order after a pretrial conference to preserve its results. Binding effect is given the pre-trial order, and any claims, witnesses and evidence not specified in the pretrial order will generally be precluded from trial. The pretrial order can only be modified in order prevent “manifest injustice.”
FRCP 16(f) also authorizes the court to punish disobedience of the pretrial order by:
[1] The Right to Trial by Jury
The Seventh Amendment of the United States Constitution states that “in suits at common law . . . the right of trial by jury shall be preserved.” In a long line of cases, the Supreme Court has interpreted this clause to refer to common law actions in existence at the time of the amendment’s adoption in 1791.
The Seventh Amendment does not confer the right to a jury trial in purely equitable actions. Thus, in determining whether a constitutional right to jury trial exists for a statutory cause of action in which Congress has not expressly created a right to jury trial, federal courts have been required to determine whether the issue at hand most closely resembles something adjudicated at law or equity in 1791.
The “legal” nature of a claim is to be determined by considering:
(1) the origins of the claim prior to the merger of law and equity;
(2) the remedy sought; and
(3) the practical abilities and limitations of juries.
[Ross v. Bernhard, 396 U.S. 531 (1970)] However, greater emphasis is to be given to the remedy sought. [Tull v. U.S., 481 U.S. 412 (1987)] Thus, legal claims brought in an action that was historically equitable, e.g., interpleader, a class action, or a shareholder derivative suit, may be tried by a jury.
Where a case presents both legal and equitable claims which have issues in common, the trial court must first try the legal claim(s) so as to preserve the right to a jury trial on such issues. [Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1959)]
A party cannot seek to bar a jury trial by couching essentially legal claims to appear as if they exist at equity. In Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962), the Court stated that the right to a jury trial applies “whether the trial judge chooses to characterize the legal issues presented as ‘incidental’ to the equitable issues or not.”
[2] Claiming a Jury Trial
The right to a jury trial is waived by a party that does not make a timely demand for such. FRCP 38(b) requires the demand to be made “in writing at any time after the commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.”
[3] Jury Selection
Voir dire is the process by which a jury is selected, and is intended to expose biases or interests of venire members (potential jurors) that would disqualify them for cause. Usually parties are given unlimited challenges for cause and a limited number of peremptory challenges. A peremptory challenge permits counsel to keep persons off the jury without offering a reason, although the Supreme Court has ruled that civil litigants may not use their peremptory challenges to exclude jurors on account of the jurors’ race or gender.
FRCP 48 requires a minimum of six jurors in federal civil trials. States differ as to the minimum number of jurors required in state civil trials.
[1] The Burden of Production
A plaintiff must present a prima facie case by presenting sufficient evidence on every essential element of the plaintiff’s claim. If the plaintiff produces sufficient evidence on those issues to justify submission of the matter to the trier-of-fact, the plaintiff has met his/her initial burden of production. If not, a directed verdict (in state courts) or a judgment as a matter of law (federal courts) may be granted against the plaintiff.
In some cases, once the plaintiff produces sufficient evidence to justify submission of an issue to the trier-of-fact, the burden of production shifts from plaintiff to defendant. Defendant then must produce sufficient evidence to avoid having a directed verdict or judgment as a matter of law entered against him/her.
For some issues (e.g., affirmative defenses), defendant has the burden of production.
[2] The Burden of Persuasion
To meet the burden of persuasion, a party must convince the trier-of-fact (the jury in a jury trial; the judge in a bench trial) of the truth of an issue to a pre-determined level of certainty. In most civil cases, the required standard proof is a preponderance of the evidence, i.e., that the facts are more likely than not as the party contends. (Depending on the issue, the plaintiff or the defendant may have the burden of persuasion.)
However, in some civil cases where interests more
significant than money are at stake, e.g., civil commitment, termination of
parental rights, and deportation, the plaintiff must persuade by clear
and convincing evidence. [See
Addington v. Texas, 441
U.S. 418 (1979); Santosky v. Kramer, 455
U.S. 745 (1982); Woodby v. INS, 385
U.S. 276 (1966)]
A presumption allows the trier-of-fact to infer the truth of a fact based on proof of another fact. A rebuttable presumption exists when a party in establishing one fact is deemed to have established a second, unless another party offers evidence rebutting the presumed fact.
§ 12.05 Judgment as a
Matter of Law
Upon the close of a party’s case, if the opposing party believes that such other party did not prove his case, he may move for a judgment as a matter of law. Traditionally, when a motion was made at the end of the plaintiff’s case, or after both sides had rested but before the jury retired to deliberate, the motion was one for directed verdict. When made following the jury’s verdict, the motion was for judgment notwithstanding the verdict (JNOV). Although states retain the distinction, federal law has merged the two motions into one for judgment as a matter of law.
A motion for judgment as a matter of law may be granted if, after a party has been fully heard on an issue, “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” [FRCP 50(a)(1)]
The party seeking judgment as a matter of law must make a motion before the jury retires, specifying “the judgment sought and the law and facts on which the moving party is entitled to judgment.” [FRCP 50(a)(2)] If the court does not grant the motion prior to the jury returning a verdict, and the verdict is unfavorable to the movant, he must renew such motion no later than 10 days after the verdict.
In a bench trial, either party may move for judgment as a matter of law after the opposing party has been fully heard with respect to a potentially dispositive issue of fact, and the court may (but need not) enter “judgment on partial findings” at any time it can appropriately make a finding of fact on that issue. [FRCP 50(c)]
Whether or not the parties request instructions, a judge has the duty in most jurisdictions to instruct the jury on the applicable law. FRCP 51 treats the manner in which jury instructions are to be prepared and given in federal court.
FRCP 51 is typical in providing that a party may challenge instructions on appeal only if he objects before the jury retires to deliberate, “stating distinctly the matter objected to and the grounds of the objection.” Appellate courts decide the correctness of instructions de novo, but view the instructions as a whole, including any curative instructions, and reverse only for prejudicial error.
Verdicts in federal civil trials must be unanimous. [FRCP 48] Verdicts may be of three types:
(1) general verdict – a verdict for one side or another without explanation.
(2) special verdict – the jury answers a series of short-answer fact questions without rendering a specific verdict; the trial judge then announces a verdict based on the answers in the special verdict. [FRCP 49(a)]
(3) general verdict accompanied by answers to written interrogatories. [FRCP 49(b)]
Both alternatives to the general verdict are within the discretion of the trial judge.
[1] In General
FRCP 59(a) and many state rules authorize a new trial in appropriate cases. Most grounds for new trial fall into two categories: errors in the jury’s evaluation of the evidence; and errors in the trial process, including errors in the law applied.
[2] Errors by the Jury
Jury verdicts may support an order for a new trial if the trial judge concludes that the verdict is excessive, inadequate, or otherwise against the weight of the evidence.
[a] Against the Weight of Evidence
The standard often applied in federal courts for determining whether a new trial is warranted is if:
“even though there may be substantial evidence which would prevent direction of a verdict.” [Aetna Casualty & Surety Co. v. Yeats, 122 F.2d 350, 352-353 (4th Cir. 1941)].
In considering a motion for a new trial, the court does not merely test the verdict for sufficiency, as is the case for motions for judgment as a matter of law, but actually weighs the evidence. Thus, there may be sufficient legal grounds for the verdict but the verdict may still be set aside for a new trial.
[b] Excessive or Inadequate Verdicts
When a motion for a new trial is granted made on an assertion that the verdict is excessive or inadequate, the trial court may conditionally grant the motion by requesting the opposing party to accept remittitur, and in some states, additur.
Remittitur is an agreement by the opposing party (generally the plaintiff) to accept a reduction of the verdict. A party who consents to remittitur waives any right to appellate review of it. [Donovan v. Penn Shipping Co., 429 U.S. 648 (1977)]
Additur is an agreement by the opposing party (generally the defendant) to accept an increase in the verdict. However, additur has been held to be in violation of the Seventh Amendment right to a jury trial and is therefore not available in federal trials. [Dimick v. Schiedt, 293 U.S. 474 (1935)] As the Seventh Amendment does not apply to the states, however, additur may be available in state trials.
Another option is for the trial court to grant of partial new trial limited to the issue of damages when the amount of the verdict has been attacked. In federal court, partial new trial “may not be resorted to unless it clearly appears that the issue to be retried is so distinct and separate from the others that a trial of it alone may be had without injustice.” [Gasoline Prod. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (1931)]
In diversity cases, state law controls regarding the standard to apply in determining whether an award is excessive. [Gasperini v. Center for Humanities, Inc., 518 U.S. 415 (1996)]
[3] Trial Process Errors
There are a variety of errors that may taint the trial process. These include judicial errors in instructing the jury or admitting or commenting on the evidence, and misconduct by parties, counsel, witnesses or jurors. The judge has discretion to grant a new trial under these circumstances. However, no verdict may be set aside and new trial granted based on a harmless error. A harmless error is one which does not adversely affect the substantial rights of the complaining party.
§ 12.09 Trial-Level
Challenges to Judgments
A party against whom a verdict is rendered may, in addition to appealing, challenge the judgment at the trial level by:
(1) collateral attack (in the case of default judgments);
(2) seek extraordinary relief (excusing the aggrieved party from the judgment); or
(3) amendment of the judgment.
[1] Collateral Attack
Collateral attack may be used to challenge a default judgment. Collateral attack is founded on the principle that, if the plaintiff’s choice of forum was so unfair as to violate the defendant’s right to due process, defendant’s refusal to participate in the action should not preclude him from later challenging the court’s personal jurisdiction over him. [See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982)]
[2] Extraordinary Relief
When the time for direct attack on the judgment by motion for judgment as a matter of law, for a new trial or by appeal has expired, a party may still seek extraordinary relief from the judgment by a FRCP 60 motion.
At any time after the judgment a party may seek correction of “clerical mistakes in judgments, orders or other parts of the record.” [FRCP 60(a)]
No later than one year from judgment, a party may seek relief under FRCP 60(b) based on:
(1) mistake, inadvertence, surprise, or excusable neglect.
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under FRCP 59(b).
(3) fraud, misrepresentation, or other misconduct of an adverse party.
FRCP 60(b) furthermore provides for relief upon motion brought within a reasonable time where:
(1) the judgment is void;
(2) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(3) any other reason justifying relief from the operation of the judgment.
[3] Amendment
Within 10 days of entry of the judgment, a party may make a motion to amend the judgment, pursuant to FRCP 59(e).
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Chapter
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