Introduction to Trial

As you will learn, civil trials are very rare in U.S. courts. At the same time, they are endlessly fascinating as a matter of political theory, fiction, and discussion. In first-year civil procedure we will only tackle a few topics relating to trial.

We won’t discuss the rules about what counts as evidence, how it may be presented to the jury, etc.: the subject of the Evidence course. There are also courses devoted to how to argue to a jury or a judge: so-called “trial advocacy” workshops. And of course, if you take clinical courses in future years—and sometimes through Student Practice Organizations—you may find yourself doing that kind of advocacy yourself.

Here is what you will learn:

12.1 Choosing a Judge or Jury for Trial will introduce you briefly to the history of civil jury trial in the United States, the arguments of critics and defenders of the civil jury trial, the tactical considerations that drive attorneys to pursue a jury as opposed to a bench trial (where the judge sits as a finder of fact) when it is available, and the scope and order of a jury trial. You will also learn about the FRCPs specifying how you demand or waive a jury trial.

12.2 The Federal Constitutional Right to a Jury Trial will help you answer the following question: under the Federal Constitution, in what circumstances is a civil litigant entitled to have a jury act as a trier of fact? Surprisingly, we will see the answer depends in part on a historical question of whether a case was tried before the law or the equity courts at the time of the framing of the Seventh Amendment (sometimes called the “law/equity” distinction) and whether the question to be decided is factual or legal (the “fact/law” distinction).

12.3 Selecting and Challenging Individual Jurors focuses on how jurors are selected in civil cases in the United States. You will learn a little about the size and composition of the juries and the voir dire process. We will spend most of our time, though, on the ability of a litigant to strike a juror using a “for cause” or “peremptory” challenge. Through several cases, you will learn a little about the tests the courts apply as to when this is permitted. We will also discuss the normative question of when a litigant should be allowed to strike a juror—and the questions of race-basis, sex-basis, and other potentially problematic bases for choosing who sits on a jury.

12.4 Motion for Judgment as a Matter of Law (Directed Verdict) introduces the motion for Judgment as a Matter of Law (“JMOL”), governed by FRCP 50. In some states, the equivalent motion is sometimes called a motion for a “directed verdict.” This is a “cousin” to two other motions we have seen already: the Motion to Dismiss for failure to state a claim and especially the Motion for Summary Judgment. Its primary purpose is to end a case after part or all of a trial but before a jury has reached a verdict. One key difference is that while summary judgment is based on the record at discovery and imagining what might appear at trial, in motions for JMOL some or all of the trial has already happened, so at least some evidence has already been presented. You will learn a little about the motion’s history and more about the standards guiding when it should be granted.