Civil procedure is often taught as if a trial, coming after the other phases in the trial court, is the normal culmination of the litigation process. In the US, this turns out not be true. In recent years fewer than five percent of cases filed in federal court are resolved by a trial. 

     That few cases go to trial today does not mean that trials are irrelevant to US procedure. While most cases do not go to trial, those that are not dismissed might go to trial, and that helps set the terms of settlement. Trial often is the BATNA (Best Alternative to a Negotiated Agreement) for the litigating parties, and how a trial might turn out directly impacts what settlement deals get reached. The parties are said to be negotiating in the shadow of the law.

     Beyond valuation, the form and structure of the trial in US procedure has profound effects on US procedure even if cases are not largely resolved in other ways. Several aspects of US trials are particularly noteworthy from a comparative perspective. First, almost uniquely, ordinary, untrained people may play an important role in deciding the case through the vehicle of the civil jury trial. That such a group gathered together from the general populace might decide the case has important effects on how the lawyers and judges think about the case but also about how the process of evidence presentation proceeds. Second, the empaneling of a jury means that a trial must be a discrete event rather than something that happens in bits and pieces over a long period of time. In many civil law systems, judges collect evidence in hearings over the full course of the case. That tends not to happen in the US, even in those cases tried before a judge alone.

     One outcome of this is that trials in the US tend to become somewhat like dramatic presentations. The facts (while never free from the potential for some surprises when live witnesses are testifying) are substantially known before the trial ever starts. As one guide to trial practice observers, "Trial lawyers have always agreed that the only way to succeed with a jury is to tell a story."  Stephanie Kane, Narrative, The Essential Trial Strategy, 34 No. 4 Litigation 52, 52 (2008)

     Another expert expounds on this in one of the leading guides to trying cases effectively:

Each party to a trial has the opportunity to tell a story, albeit through the fairly stilted devices of jury address, direct and cross-examination, and introduction of evidence. The framework for the stories—or their grammar—is set by the rules of procedure and evidence. The conclusion of the stories—the end to which they are directed—is controlled by the elements of the applicable substantive law. The content of the stories—their plot and mise-en-scène—is governed, of course, by the truth, or at least by so much of the truth as is available to the advocate. Thereafter, the party who succeeds in telling the most persuasive story should win.

Lubet, Steve; Lore, J.C.. Modern Trial Advocacy: Analysis and Practice, Law School Edition (NITA) (p. 13). 

Even for those cases that settle or are resolved by motion, this mindset of viewing a dispute as a story to be told can be important to US lawyers. As you go through the materials on trials and post trial motions, keep in mind how the very possibility of a trial affects the way the case is valued, how it is developed, and how it is resolved even outside of trial.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

(a) Right Preserved. The right of trial by jury as declared by the Seventh Amendment to the Constitution—or as provided by a federal statute—is preserved to the parties inviolate.

(b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by:

(1) serving the other parties with a written demand—which may be included in a pleading—no later than 14 days after the last pleading directed to the issue is served; and

(2) filing the demand in accordance with Rule 5(d).

(c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues so triable. If the party has demanded a jury trial on only some issues, any other party may—within 14 days after being served with the demand or within a shorter time ordered by the court—serve a demand for a jury trial on any other or all factual issues triable by jury.

(d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent.

(e) Admiralty and Maritime Claims. These rules do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).

(a) When a Demand Is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless:

(1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or

(2) the court, on motion or on its own, finds that on some or all of those issues there is no federal right to a jury trial.

(b) When No Demand Is Made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded.

(c) Advisory Jury; Jury Trial by Consent. In an action not triable of right by a jury, the court, on motion or on its own:

(1) may try any issue with an advisory jury; or

(2) may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right, unless the action is against the United States and a federal statute provides for a nonjury trial.

     Jury Trials and Bench Trials. All trials in the United States, of course, require the presence of a judge. The judge will be charged with determining the law to be applied and with controlling the proceeding. In some cases, the facts (and the ultimate) verdict are determined by juries; in other cases the facts and the ultimate verdict is determined by the judge acting alone. Trials with only a judge and no jury are often called bench trials.

     As you recall, there was no right to a jury in traditional equity practice. Juries were an element of the common law system. The legacy of this, as we shall see, remains powerful. The Constitutional right to a civil jury trial in federal court only applies to matters where a jury would have been available under the common law. If a claim is viewed as arising in equity, then there will be no jury for that claim.

     There can also be bench trials on common law claims if no one demands a jury. Put differently, juries are not automatically assigned; someone needs to make the demand. For a variety of reasons, ranging from getting an earlier trial date to preference for a judge, both parties to a case might prefer to put the case only into the hands of a judge.

     Jury Trials in the US System.  In a comparative sense, the US system of using jurors to decide issues of fact in major civil cases, as well as criminal cases, is exceptional. Even in the common law world, other major jurisdictions rarely provide juries in civil (rather than criminal) cases. Using jurors has thoroughly ordinary people with no special skills or training resolving important issues in important matters. Some celebrate this as a way to impose a check on the elites who otherwise create and apply the laws, bringing the perspective of ordinary folks to bear. In the traditional common law trial under the writ system, the range of fact issues to be decided was fairly narrow. Today, in complex litigation with many counts and esoteric expert testimony, the question sometimes arises as to whether the jury is up to the tasks assigned to it. Techniques such as bifurcated trials (which might split, for example, issues of liability into a separate proceeding from issues of damages) and special verdicts (see more below) are efforts to deal with that. 

      Aside from bringing ordinary people into important decisions, there are less obvious ways that jury trials have affected US practice. One important one has to do with the presentation of evidence. Because jurors are called for limited periods, trials have to be presented as discrete events. The gradual accumulation of evidence that might take place a day or two at a time in a civil law system cannot work with a jury. While some trials, civil and criminal, can go on for a long time, it still is true that there must be a beginning and an end. Trials as a separate event tend to become presentations not unlike scripted dramatic events, with each witness and piece of evidence weighed in part for meeting burden of proof issues but also for making a dramatic impact on the jury. 

     Sixth Amendment and Seventh Amendment. There are two Constitutional amendments that deal with the right to a jury trial. The Sixth Amendment addresses the right to a jury in criminal cases. The Supreme Court has held that the Sixth Amendment has been incorporated against the states via the Fourteenth Amendment, meaning that the Constitutional right to a jury trial applies to criminal trials in state court. By contrast, the Seventh Amendment applies only to trials in federal court. US states commonly grant the same right through their state constitutions, but they are free to adopt different systems by state. Some do, allowing smaller juries (six instead of the traditional twelve) or non-unanimous verdicts. The scope of the right can also vary by state. We will not be concerned in this course either with the Sixth Amendment right or with state practice as to jury trials.

     Pretrial Conference. Prior to trial, the parties normally will meet with the judge in a pretrial conference under rule 16. Because the pleading rules are liberal and relaxed, allowing amendments up to trial, this conference is important for determining what issues actually will be contested at trial. At such a conference, lists of witnesses and exhibits may be exchanged. Parties might drop marginal claims or defenses in order to focus better on their stronger claims or defenses. The parties might agree on undisputed facts or on the applicable rule of law. Parties might also submit motions in limine, asking for a ruling on whether evidence will be admitted at trial. Ruling on such motions can clarify the likely outcome in a way that helps lead to settlement.

     The pretrial conference also presents an opportunity for the judge to send signals about his or her evaluation of the case, which can lead to settlement. It is not unusual in these proceedings for judges actively to encourage settlement, nor is it unusual for judges actively to encourage the parties to stipulate to issues so that testimony is not necessary and trial faster and more efficient. That said, while the power of the judge to encourage is substantial, the judge cannot require the parties to settle the case, nor can the judge require the parties to stipulate to issues which are reasonably contestable.

     Jury Selection. Selecting the jury is an important part of the jury trial process.  A list of potential jurors is maintained for a given venue, usually drawn from voter registrations or driver’s license registrations. The larger panel must be representative and random – for example, excluding those who get paid by the day was held to skew the jury pool impermissibly. When a trial is scheduled, from this pool a panel is summoned to the courthouse to undergo jury selection.

     Once a jury panel is assembled, from that larger panel the actual jurors sitting on the case will be selected. The normal jury panel is 12 jurors, but in most cases alternate jurors will also be seated, who will hear the case and take a voting place on the jury if any other juror is unable to continue. In cases expected to go for a long time, there can be half a dozen alternates or more.

     The jurors will be called before the judge and undergo what is called a voir dire, which is old French for “to speak the truth.”  The purpose of the voir dire is to determine whether the jurors have any conflicts or biases that make them unsuitable for jury service, as well as to draw out characteristics that might bear on the exercise of peremptory juror challenges (see below). In some cases, skilled trial lawyers use the voir dire as an opportunity to frame the case their way, by subtly portraying the sides with positive or negative associations in questions, or by desensitizing the jurors to large numbers that might be sought in damages. In part to control this, in some courtrooms the judge will conduct voir dire herself, but with input from the lawyers on questions to be asked.

     As the jurors are examined, they can be accepted for service or challenged. There are two kinds of challenges – for cause or peremptory. For cause challenges are exactly what they sound like. For some reason, the juror cannot be expected to be fair or impartial. Reasons might include an expressed conclusion on how the case should turn out that the juror says he or she cannot set aside, or some kind of relationship with a party or an attorney that might cloud judgment (for example, the lead counsel’s husband would normally be excused for cause).

     Peremptory challenges can be exercised without need to explain why they are being used. A trial lawyer may simply have a bad feeling about a juror, or may have decided that residents of certain neighborhoods or consumers of certain products are less likely to favor his client.

     There are some limits on peremptory challenges. While they can be used for no reason, they cannot be used for improper reasons.  Peremptory challenges cannot be used to exclude jurors on the basis of race, Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991), or on the basis of gender, J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994).

     Some experienced trial lawyers claim that once a jury is empaneled they can predict who will win the jury trial, because the make up of the jury and its mix of backgrounds and biases can affect how the decision makers will see the evidence. To make the most strategic use of challenges, trial lawyers will spend much time analyzing what kinds of jurors are most likely to be favorable to their case. In recent decades, jury consultants have arisen that draw on segmentation techniques used in advertising to analyze potential jury pools. Mock jury panels that are expected to be similar to the actual jury pool (but not actually overlapping as that would constitute impermissible interference) are sometimes exposed to a summary version of the trial. Both the outcome of various ways to present the case and the characteristics of favorable jurors are then statistically analyzed. Based on this analysis, which often is combined with advertising demographic research, trial lawyers may be advised on the characteristics of desirable jurors. They may be advised, for example, to select or avoid jurors who drive certain brands of cars.   Note that such techniques are limited to parties with sufficient resources to afford them.

     Scope and Order of Trial. Once a jury has been selected, the trial may begin. The judge typically wlll explain the trial process and the jury’s role before the trial begins. They also will receive warnings about discussing the case with outsiders and even with each other before formal deliberations begin.

     Keep in mind that skilled trial lawyers, as we have noted before, will stay focused on the story they are trying to tell to the jury (or, sometimes for defense counsel, on poking holes in the story being presented by the plaintiff). The opening statements will tell that story, and as witnesses come into the trial skilled advocates will try to make it apparent how the testimony fits into the overall narrative. 

     The order can vary by jurisdiction, by the preference of the judge, or by request of counsel. For example, not often but on occasion a defense counsel may choose to defer its opening statement until the start of the defense case. A party may also forego cross examination at the time a witness is called, reserving the right to call them in the defense case or the rebuttal phase.

     Typically, a case will proceed along the lines that follow:

     ·       Plaintiff’s opening statement

     ·       Defendant’s opening statement

     ·       Plaintiff’s presentation of direct evidence

     o   With cross examination

     ·       Defendant’s presentation of direct evidence

     o   With cross examination

     ·       Plaintiff’s presentation of rebuttal evidence (not new areas but limited in scope to rebuttal)

     o   With cross examination

     ·       Defendant’s presentation of rebuttal evidence (not new areas but limited in scope to rebuttal)

     o   With cross examination

     ·       Opening final argument by plaintiff

     ·       Defendant’s final argument

     ·       Closing final argument by plaintiff

     ·       Instructions to the jury by the judge

     Note that this tends to happen in one proceeding, or at most in a small group of connected segments of one proceeding. (Trials can be bifurcated, for example - with the liability phase separated from the damage phase. This is most likely to happen in highly complex cases. When this happens, however, the phases have to be somewhat close in time.) As opposed to practice in civil law jurisdictions, evidence comes into the trial record as part of this distinct event, rather than being collected bit by bit as the case proceeds.

     Keep in mind also that skilled trial lawyers will use each element of this process not just to reinforce the narrative or story they are trying to tell. The outline of the narrative may begin to be revealed during voir dire, presented more directly in opening statements, and then tied to the evidence presented in closing arguments. When in the hands of capable trial lawyers, the jurors are not left to wonder how important bits of evidence fit together.

      For example, a pretty typical personal injury narrative from the plaintiff's side might involve a loving stay-at-home mother taken from her family by the callous negligence of the greedy defendant. If allowed, the plaintiff's attorney might ask at voir dire if the jurors would have difficulty awarding damages even though the victim was not earning an income outside the home, and if they would be willing to take into account how much her family loved and depended on her. The opening statement would humanize the victim and then proceed to tell stories of how the defendant put out a defective product, possibly motivated by greed. The first witness might be a grieving family member rather than an event witness, with the goal being establishing the scope of the loss. And so on. The defense might have a counternarrative or might limit itself to undercutting key elements of the plaintiff's story (while it was surely tragic that the victim was killed, the cause was something other than the fault of the defendant). What skilled trial lawyers will not do is drop unconnected facts on a jury and expect them to assemble them into a coherent whole.

     At the close of trial, the judge will give the jury instructions on the law to be applied to the various claims and defenses. Those of you who have struggled to gasp the law as it has been presented to you in law school might wonder how reliably ordinary jurors grasp the fine points of the legal doctrine they are expected to apply. Samples of judicial legal instructions follow and more extensive selections can be found on TWEN to give you an idea how this is handled.

     One thing the judicial instructions will cover will be which party bears the burden of production and the burden of persuasion on each claim, defense, and response to a defense.

     Questions of Fact and Questions of Law.  It is boilerplate familiar to any US attorney that declaring what the law is the function of the judge but that determining which facts have or have not been proved is the province of the jury. Questions of law are for the judge; questions of fact are for the jury, and supposedly never the two shall meet. Jurors are free to decide which evidence to believe and how much weight to give to different witnesses and different bits of evidence.

     As we've already seen in the content of summary judgment, however, judges may address the sufficiency of the evidence - that is, is there evidence in the record that if believed would allow the parties to make out a claim or a defense? While seemingly clear analytically, cases such as Scott v. Harris suggest the line sometimes can be less than clearcut.

     Also fuzzy at time is the distinction between what matters are factual for the jury and what matters are legal for the judge. In the case of Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), for example, the defining issue in the case was the meaning of the term "inventory" as used in the patent. The patent holder claimed that the jury should determine that as a matter of fact. The Supreme Court disagreed. In the absence of historical practice at the time the Seventh Amendment was adopted, the court found that judges, being trained in legal interpretation, were more likely to get right the problem of determining the meaning of words in a text, and that moreover making the issue one of law allowed for consistency in the determination that might not flow from jury determinations.

     Special Verdict / General Verdict. When sent to the jury room to deliberate the jury may be told to render what is called a ‘general verdict’ or a ‘special verdict.’ A general verdict simply asks the jury who prevails on each claim and for the amount of damages, if any. A special verdict breaks out specific questions for the jury to answer, Special verdicts can be used when the legal standards are elusive but the facts bearing on that standard determinative. Examples of a general verdict form where there is both a claim and a counterclaim and a special verdict form used in the courts of Colorado follow.

GENERAL VERDICT

IN THE _______ COURT IN AND FOR THE COUNTY OF _______, STATE OF COLORADO Civil Action No. _______ ___________________________________ ) Plaintiff, ) v. ) VERDICT ___________________________________ ) Defendant. )

YOU ARE TO SIGN EITHER PART A. OR PART B. BELOW OF THIS VERDICT, BUT NOT BOTH.

Part A. We, the jury, find for the plaintiff, (name), and award damages of $______ against the defendant, (name). ______________________________ ______________________________ Foreperson ______________________________ ______________________________ ______________________________ ______________________________

Part B. We, the jury, find for the defendant, (name), and against the plaintiff, (name). ______________________________ ______________________________ Foreperson ______________________________ ______________________________ ______________________________ ______________________________

SPECIAL VERDICT (OR SPECIAL INTERROGATORIES)

You are instructed to answer the following questions which will be on a form for Special Verdict:

1. Did the plaintiff, (name), own a white horse?

2. Did the defendant, (name), ride the white horse without the plaintiff’s permission?

3. Was the plaintiff damaged as a result of the defendant’s riding of the white horse?

4. State the amount of damages, if any, that the plaintiff had that were caused by the conduct of the defendant. Before you return the Special Verdict answering these questions, you must all agree on the answers to each of the questions. Upon arriving at such agreement, your foreperson will insert each answer in the verdict and then he or she and all other jurors will sign it upon completion of all answers.

To give you a sense of what jury instructions look like, here are some short excerpts from the Michigan Model Civil Jury Instructions. The full model instructions can be found at: https://courts.michigan.gov/Courts/MichiganSupremeCourt/mcji/Documents/HTML/Model%20Civil%20Jury%20Instructions-Responsive%20HTML5/index.html

M Civ JI 10.01 Definitions Introduced   

I shall now give you the definitions of some important legal terms. Please listen carefully to these definitions so that you will understand the terms when they are used later.

M Civ JI 10.02 Negligence of Adult—Definition   

Negligence is the failure to use ordinary care. Ordinary care means the care a reasonably careful *person would use. Therefore, by “negligence,” I mean the failure to do something that a reasonably careful *person would do, or the doing of something that a reasonably careful *person would not do, under the circumstances that you find existed in this case.

The law does not say what a reasonably careful *person using ordinary care would or would not do under such circumstances. That is for you to decide.

M Civ JI 10.05 Duty to Use Ordinary Care—Adult—Defendant   

It was the duty of the defendant, in connection with this occurrence, to use ordinary care for the safety of [ the plaintiff / and / plaintiff’s property ].

   Right to a Jury. United States is somewhat exceptional in allowing juries in civil trials. Even the UK, where the right to a jury trial originated, juries in civil cases have all but disappeared.

     Either party may demand a jury trial. Rule 38 of the federal rules sets out the process. A party may demand jury trial for all claims for which a jury is proper, or only for certain claims. If neither party demands a jury trial, the judge will try the case without a jury.

     The right to a jury in federal court arises from the Seventh Amendment, which in civil cases preserves the right to a jury in those situations where a jury was allowed in common law at the time the Seventh Amendment was adopted in 1791. The Seventh Amendment does not apply to trials conducted in state court, with states able to make their own decisions about whether and when jury should apply in a civil case. The Seventh Amendment also by its terms does not extend the right of a jury to all civil cases, but only preserves the right in those cases where jury could be had in common law. As you will recall, in the equity courts no jury was available. The Seventh Amendment does not preserve any right to a jury trial in equitable actions where no such right ever existed. Because so much has changed since 1791 with regard to both substantive rights of action and procedural devices, the historical test of whether a jury was available in 1791 often provides little guidance.

     What happens when a case involves both equitable relief and damages? The Supreme Court faced this issues in Beacon Theatres v. Westover, 359 U.S. 500 (1959). In Beacon Theatres, the plaintiff had filed for declaratory relief, seeking a declaration that it had not violated the antitrust laws and for an injunction preventing the defendant from instituting any antitrust actions elsewhere. The defendant counterclaimed, seeking damages for an antitrust violation, and demanded a jury trial. The trial court ruled that it would resolve all equitable issues first, and then consider a jury trial. As a practical matter, the court’s determination would control the outcome. The Supreme Court reversed, holding that the defendant was entitled to a jury trial on its damages claim before any permanent injunctive relief was entered. The Court was similarly expansive in Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962). In that case, the plaintiff sought injunctions and an ‘accounting’ for money owed. Even though the term ‘damages’ was not used, the Court held that the claim was essentially one for damages and a jury was required. Similarly, in Ross v. Bernhard, 396 U.S. 531 (1970), the court held that a jury was required in a derivative suit – traditionally an equitable device – when the underlying claim on behalf of the corporation was one for damages.

     Footnote ten in Ross v. Bernhard summarized the Court’s approach: “As our cases indicate, the "legal" nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply.”

     In Chauffeurs, Teamsters & Helpers Local No. 391 v. Terry, 494 U.S. 558 (1990), the Court faced a situation in which union members claimed that the union had failed to meet its duty of fair representation for a group of the union members. Not only was this not a cause of action that existed at the time the Sixth Amendment was adopted; at that time engaging in organized employee activity such as a union was a criminal activity.

     Justice Marshall’s examination of the historical analogue issue (looking at, among others, legal malpractice and duties of a trustee) and found the issue to be in “equipoise.” A total of four justices joined this part of his opinion. He secured a total of six justices for the second part of his opinion, which found that since the remedy sought was essentially damages, a common law remedy, a jury was required. The opinion noted that even if historical analogs counted, “the nature of the relief . . . is more important to the Seventh Amendment determination.” A concurrence by Justice Brennan argued for doing away with the historical inquiry altogether.  Justice Kennedy joined by two other Justices would have found that the case most closely resembled a trust action, an equitable action, and that therefore, without further inquiry, the Court should held that a jury trial was not available.

(a) Judgment as a Matter of Law.

(1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

(2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment.

(b) Renewing the Motion After Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), 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. No later than 28 days after the entry of judgment—or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged—the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. In ruling on the renewed motion, the court may:

(1) allow judgment on the verdict, if the jury returned a verdict;

(2) order a new trial; or

(3) direct the entry of judgment as a matter of law.

(c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial.

(1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial.

(2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders.

(d) Time for a Losing Party's New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment.

(e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment.

(a) In General.

(1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues—and to any party—as follows:

(A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court; or

(B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in federal court.

(2) Further Action After a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment.

(b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment.

(c) Time to Serve Affidavits. When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The court may permit reply affidavits.

(d) New Trial on the Court's Initiative or for Reasons Not in the Motion. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party's motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order.

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.

     JMOL. Is there any way to challenge the outcome of a jury trial? Read Rule 50 carefully. Judgment as a Matter of Law involves the same question as summary judgment - has the burden of production been met - but in the context of the evidence actually produced at trial. Evidence that was expected at the time of summary judgment does not always get entered into the record at trial, and if no evidence supports the verdict a judge-directed dismissal is in order.

     Note the timing of Rule 50. The motion must be made in the first instance before the case is submitted to the jury. Failure to make a motion at this time means it will be impossible to renew the motion later. What's more, the arguments made in the first motion control what arguments can be made in the renewed motion; the movant cannot advance different arguments in the renewed motion.

     As a general rule - and as always, there are exceptions - judges are reluctant to grant the first motion for judgment as a matter of law that is made before the case goes to the jury. (Note that this first motion in some state systems is called a motion for a directed verdict). First, the jury has sat through the trial and generally wants to make a decision. Second, if the evidence is weak enough for a JMOL motion to be a winner, one would hope that the jury would reach the same result as the judge. This would make action by the judge unnecessary and would remove the granting of a JMOL motion as a grounds for appeal. As a general rule, JMOL motions are made routinely in any case where there is any possible justification and as a general rule they are denied.

     What if the jury comes to the wrong result, and makes an award that is challengeable because the winning party did not meet its burden of production? At this point, the Rule 50 JMOL motion is renewed. At this time, it is incumbent upon the judge to decide if the evidence supports the verdict.

     The case following arises from a state court, and uses somewhat different language (JNOV for judgment non obstante veredicto in Latin, or judgment notwithstanding the verdict in English), but the standard of sufficiency of the evidence that is applied is the same as would be applied under Rule 50.

     New Trial, Remittitur, and Additur. Another option for those unhappy with the result of a jury trial is to file a motion for a new trial. In this case, the judge does not enter a verdict, but simply sets aside the jury verdict and schedules a new trial. This might happen for a variety of reasons, even if the judge feels that the JMOL standard has not been met - there might have been misconduct that the judge feels might have tainted the verdict, or the verdict might be so against the weight of the evidence (while still short of a JMOL) that the judge feels a new trial is warranted.

     The new trial can be granted conditionally. At the common law, and therefore in federal court, the new trial can be conditioned on a remittitur, which is the reduction of the damages to a lower level than granted by the jury. The jury might have awarded more than could be awarded under any proper calculation, or might simply have given more than the judge feels the evidence warranted. The party that prevailed at trial has an option. They can either accept the remittitur or they can opt for a new trial. In some state systems there is a parallel option called additur, where instead of reduced damages the new trial is conditioned on the acceptance of increased damages. This was not a feature in the common law and hence is not available in federal court.

     Note that, in terms of an appeal, a grant of a new trial does not satisfy the rule of finality for an appeal as the case is ongoing. Unless there is some way around the rule of finality for the claim involved, before the grant of a new trial gets to the appellate court, there will have been a second trial. In addition, trial courts are given great discretion in determining whether a new trial is called for.  As a consequence, appeals of new trial orders are difficult. Contrast that to an entry of judgment on a JMOL motion, which leads directly to an entry of judgment and an issue of law suitable for appellate review.

     Burden of Pleading, Burden of Production, and Burden of Persuasion. We have previously discussed the burden of pleading and the burden of production. At trial, we reach a new burden - the burden of persuasion. The burden of persuasion addresses whether the finder of fact finds the evidence admitted persuasive to the required level (usually a preponderance of the evidence, but as we've seen sometimes a higher standard such as clear and convincing.) For example, if Farmer Green pleads that he saw Farmer Verde removing his prized pig from his pigpen late at night, that would meet the burden of pleading for a theft claim, and if he gives deposition testimony consistent with that it should meet the burden of production because there is evidence a jury could rely upon. It might not meet the burden of persuasion. On cross examination, for example, an attorney might establish that the night was dark, that Farmer Green was tired or perhaps even intoxicated, that his vision was not good, and so on, a jury might conclude that Farmer Green did not actually see what he thought he saw, and might disregard the testimony. That would go to the burden of persuasion. The burden of persuasion is for the factfinder so long as the burden of production has been met.

•      Although trial nominally is the destination and conclusion of the litigation process, in reality very few cases filed in federal court are resolved at trial - currently fewer than one percent. 
•      Even though few cases are resolved by trial, the persistence of trial as the paradigm for dispute resolution has many consequences for US litigation. For one, the idea that a case will be resolved by a jury empaneled for short time means that US trials are treated as discrete events. Unlike in civil trial systems, evidence normally is not added to a trial record on an ongoing basis throughout the litigation process. Another consequence is that US litigators are trained to present a case as a story easily grasped by ordinary people.
•      Not all trials in the US are or can be jury trials. First, the right to a jury trial only extends to situations where a trial was allowed at common law, which excludes equitable proceedings. Second, a jury trial has to be demanded, and if the parties fail to demand or choose not to demand a jury trial, the case will be resolved by the judge as factfinder.
•      The law has moved on since the right to a civil jury trial was added to the Constitution by the Seventh Amendment, and if a statute does not explicitly grant a right to a jury trial the court will have to determine whether the right created by that statute leads to a jury trial. As we saw in the case we read, this can be a complex process, with the court looking at the remedy sought but also to see if there are sufficiently on point historical parallels.
•      The standard statement is that questions of fact are for the jury and questions of law for the judge when there is a jury trial. While the distinction is often simple enough, there are settings where the line between fact and law is not self-evident. In a case involving interpreting a patent, the Supreme Court held that interpretation of the language in a patent was an issue for the judge, not the jury.
•      Jury selection involves a process called voir dire, where jurors can be questioned. Parties can either file peremptory challenges (for no explained reason) or for cause challenges (as it sounds, a reason has to exist to exclude the juror, such as an inflexible opinion on the case or conflicts). While peremptory challenges can be exercised for no reason, they cannot be exercised for impermissible reasons, such as race or gender discrimination. Because jury selection is important to the outcome, well-funded parties might employ consultants who use social science and marketing expertise to help determine what kinds of jurors are most likely to be favorable to their side.
•      Before trial there will be a pretrial conference in which the issues for trial will be discussed and narrowed, and the list of witnesses established. The judge may 'encourage' the parties to settle, but cannot absolutely require them to. The parties might file motions in limine to decide whether evidence should be included or excluded. 
•       After evidence has closed, parties might file motions for Judgment as a Matter of Law (JMOL). This motion can be renewed after the jury's verdict, but only if it was filed after the close of evidence and before the case goes to the jury. In deciding the motion, the court will look to whether the prevailing party met their burden of production on the essential elements of their claim. A losing party can also file a motion for a new trial, which leads not to a verdict but, as you would guess, to a new trial. The standard is somewhat more lenient than for a JMOL but the court will still need to identify substantial errors such as evidence wrongly admitted or excluded, prejudicial behavior which could not be cured, damages outside the correct boundaries, or a judgment strongly against the weight of the evidence. A federal judge can use a device called remittitur, which gives a new trial only if the winning party refuses to agree to reduce damages to the level considered proper by the judge.
•      If the burdens of pleading and production have been met, at trial the factfinder must determine if the burden of persuasion has been met. This includes deciding whether to believe offered evidence as well as weighing conflicting testimony against each other.  

      A magnificent pig that is Farmer Green's pride and joy is located in his pig pen near the state border between Tennessee and Virginia. One day Farmer Green comes out and the pig is missing. A few days later he notices his pig in the pigpen of Farmer Verde, across the state line in Virginia, but only 50 meters away.

     Farmer Green files suit to retrieve the pig and survives motions to dismiss at the pleading and summary judgment phase. After a pretrial conference that narrows issues, the case goes to trial on two claims: 1) the recently enacted federal Wrongful Possession of a Pig Act, which allows only for injunctive relief if a pig owned by one part is held by another party, and allows that injunction upon only proof of ownership, and 2) a common law action for theft of a pig, which requires proof of wrongful taking and keeping of a pig.

      Farmer Green has asked for a jury trial on both counts. Please analyze.

      At trial, Farmer Green presents evidence that the pig in issue belongs to him. He presents no evidence as to how the pig came to be in Farmer Verde's pigpen. Farmer Verde files no motions at the close of evidence. A jury finds for Green and awards $10,000,000 in damages on the state law claim, with the damages being many times the market value of the pig. Please analyze what options Farmer Verde has after the verdict is announced.

===========================================================

      One dark and stormy night, Pamela Plaintiff dies in an automobile accident. On a desolate highway, her car has collided with a car driven by Drunk Don, who also dies in the accident. There are no eyewitnesses, and it is impossible to tell from the accident scene who was in which lane. However, two eyewitnesses tell Plaintiff's attorney that fifteen minutes before the accident, Drunk Don had left a bar very drunk after drinking 15 shots of Maitai. Another eyewitness tells the attorney that he saw Don thirty seconds before the accident going over the crest of a hill at 98 miles an hour in the wrong lane. The accident happened just on the other side of the hill, just out of sight of the witness.

     Plaintiff’s estate files a tort suit against the estate of Don, alleging negligence and citing the facts above, and seeking $1,000,000 in damages. Don’s estate moves to dismiss, citing Twombly and Iqbal, and moving for sanctions under Rule 11.     

     You are the law clerk on the case. Please advise the judge.

      Assume the motion is denied. Don’s attorney answers, filing denials to everything, including uncontrovertible allegations such as Don’s address, and files a counterclaim for $50,000, alleging negligence on the part of Plaintiff. Don’s estate also files a counterclaim alleging that Plaintiff owed Don $25,000 on a debt. (Both Don and Plaintiff are residents of different states). Don’s estate also moves to implead his insurance company, headquartered in Plaintiff’s state, claiming that if he is liable they are required to pay the judgment. Again, the judge asks for your advice. What do you tell her?

     The case proceeds to the end of discovery. The two witnesses to the Don's drunkenness give testimony consistent with what they told Plaintiff's attorney. However, the eyewitness who claimed to have seen the car crossing into another lane has moved to a remote village in China to teach English, and a deposition cannot be scheduled. However, she gives an affidavit, and says she will be able to come back for trial. Don's estate moves to dismiss the claim against Don on summary judgment. What advice do you give the judge?

     Trial has now happened. The eyewitnesses to Don's drunkenness appear at trial. One testifies consistent with the deposition testimony but on cross admits to having drunk heavily herself such that her memory might not be totally reliable. She does testify, however, that Don was despondent, and said he was thinking about driving his car into another car in order to end it all. The other witness claims to now be unable to remember the events of that night clearly. The witness who saw the car going over the hill does come to testify, but now remembers hearing a crash about 90 seconds, not thirty, after the car went over the hill. A jury brings back a $100,000,000 verdict against Don's estate (which had filed a JMOL motion after the close of discovery). Don's estate now brings a renewed JMOL motion and in the alternative a motion for a new trial. Please advise.