Civil Procedure II


A trial is the formal examination of legal and/or factual issues in a case.

The standard of proof in a civil action is a preponderance of the evidence.

Preponderance of the Evidence

Preponderance of the evidence means more likely than not—more than 50%.

Many jurisdictions require clear and convincing evidence for fraud, a higher standard.

Criminal trial require proof beyond a reasonable doubt—something like 99%.

Matter of Law

A matter of law is a legal determination to be made by the judge; not involving determining facts.

The party with the burden of proof can draw all reasonable inferences. However, if evidence points equally to two conclusions, the inference can not be drawn and the party with the burden of proof loses. If undisputed evidence of essential fact points equally to the defendant being liable and being not liable, then the plaintiff loses. Reid.

A jury cannot split damage awards. If the harm is a million dollars, the jury must award either $1 million or nothing, not some partial amount. (Some states reduce damages for contributory negligence, but not for the jury's uncertainty.)

Bench Trial

A bench trial is when the court finds facts instead of a jury. It is detailed in Rule 52.

Fact findings by a judge will not be set aside on appeal "unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility." Rule 52(a)(6).

  • Law is reviewed de novo by the appellate court.
  • Findings of fact are given deference by the appellate court and will only be overturned if the reviewing court is left with "the definite and firm conviction that a mistake has been committed."

A court can modify an order within 28 days. Rule 52(b).

Burden of Production

A burden of production means one must present evidence that a rational finder of fact could rely upon.

This is not the same as proving the fact at trial, as required by the burden of proof.

Burden of Proof

A burden of proof means one must satisfy the standard to be applied by the fact finder. In a civil trial, this is a preponderance of the evidence. If the standard is not met, the party without the burden of proof prevails on the issue.

Five procedural devices are used to limit the jury:

  1. Law of evidence
  2. Judgment as a Matter of Law

    Judgment as a matter of law, formerly known as a directed verdict, is a judgment entered during a jury trial upon finding that a reasonable jury would not have a legally sufficient evidentiary basis to find otherwise.

    In considering a motion for judgment as a matter of law, the judge must view all evidence in the light most favorable to the party opposing the motion. The judge cannot weigh the evidence or make credibility determinations between witnesses.

    A "mere scintilla of evidence" by the party with the burden of proof is not sufficient to survive motion for judgment as a matter of law.

    (The standard for judgment as a matter of law is almost the same as that of summary judgment.)

    A judgment as a matter of law motion must be filed after the opposing party has been fully heard, but before the case is submitted to the jury.

    Rule 50(a).

  3. Renewed Judgment as a Matter of Law

    A renewed judgment as a matter of law, formerly known as a judgment notwithstanding the verdict, is a judgment as a matter of law that is renewed after a case has been submitted to a jury and a judgment has been entered.

    A motion for a renewed judgment as a matter of law must be filed within 28 days after the judgment is entered and can only be filed if the party previously filed a motion for judgment as a matter of law.

    Rule 50(b).

  4. New Trial

    A judge may grant a new trial for any reason for which a new trial has been granted beforehand.

    The most common grounds for a new trial are for procedural flaws and substantive flaws.

    Procedural Flaws

    Procedural flaws are flaws in the procedure of a trial.

    If a procedural flaw affects the result of the trial, the only way to correct it is to grant a new trial.

    • Newly discovered evidence
    • Improper conduct by counsel
    • Jury misconduct
      • Visiting the scene of the incident
      • Reading news about the incident
    • Error by the court
      • Improper jury instructions
      • Improperly admitting or denying evidence
      • Incorrect ruling of law
    Substantive Flaws

    Substantive flaws are flaws where the jury returned a verdict they should not have.

    There are two types of substantive flaws:

    1. Where the jury splits the difference in its verdict
      • E.g., jury must either return a verdict for $10,000 or $0 and it instead returns $5,000.
    2. Where "the verdict is against the great weight of the evidence."
      • Most common ground for a new trial based on a substantive flaw
      • This is a lower standard than for a (renewed) judgment as a matter of law.
      • It must be "quite clear that the jury reached a seriously erroneous result."
      • This standard is somewhere between requiring no reasonable basis and the judge substituting how he would would have voted.

    Judges have wide discretion in granting new trials and will only be revered if they abuse their discretion.

    A motion for a new trial must be raised within 28 days after the entry of judgment.

    Rule 59.

    A new trial can concern only one particular issue.

    Conditional New Trial

    A judge can grant judgment as a matter of law, with the alternative of a new trial if the appellate court rules that judgment as a matter of law is improper. The appellate court would also have to rule the new trial proper however.

  5. Jury Instructions

    Each party may submit jury instructions to the court for it to consider.

    The judge must inform the parties of its proposed instructions and give them an opportunity to object before the instructions are delivered.

    • If a party does not object, it waives its right to unless the court finds "plain error" affecting substantial rights.

    Rule 51.


Additur is when a judge increases a jury's damage award. It is very rare and does not exist in federal court.


Remittitur is when the judge reduces damages below what the jury awarded.

It is permissible as long as the court offers the plaintiff the choice between the reduction and a new trial.

  • In essence, the court is informing the plaintiff that the damages award is "against the great weight of the evidence" and that he will order a new trial unless the plaintiff agrees to an amount believed to be supported by the evidence.
  • An exception is punitive damages, which a judge can reduce without asking the plaintiff.
Miscellaneous Jury Rules

One must request a jury trial within 14 days after the last pleading or the right will be waived and the matter will have a bench trial. Rule 38.

If a jury trial is demanded under Rule 38, it must be granted unless the parties stipulate otherwise or the judge finds that there is no right to a jury trial on the issues. If a jury trial is not requested, it will be a bench trial unless the judge orders a jury trial anyway. Rule 39.

Jury Selection

Voir dire, Latin for "to speak the truth", is the process of selecting a jury.

The court may permit the parties to ask questions of potential jurors or it may do it itself.

Challenge for Cause

A challenge for cause is a challenge to a potential juror on the ground that he is not impartial.

Peremptory Challenge

A peremptory challenge is a challenge to a potential juror for any reason provided by 28 U.S.C. § 1870.

Each party gets a maximum of three peremptory challenges.

Peremptory challenges cannot be based on race or gender.

Rule 47.

A jury must be 6–12 people unless fewer are stipulated too. Rule 48(b).

A jury must reach a unanimous decision unless the parties agree otherwise. Rule 48(b).

A judge may poll the jury after its verdict to ensure that the verdict was unanimous or met the parties' agreed standard. Rule 48(c).

A court may submit forms requiring a jury to return a general verdict—only containing the verdict; a special verdict—only containing written findings of fact; or a general verdict with written answers. If written answers are given, they dictate the verdict, not the given verdict. Rule 49.