rel="nofollow" href="#ulink_688525c7-1382-583a-8536-64807d2cbad7">28 Attorneys can remove jurors from the jury pool with preemptory challenges.29 A jury must begin with at least six and no more than twelve members.30 Jury selection typically takes at least one day.
When the jury is selected, the plaintiff begins with the opening statement. The opening statement frequently includes a summary of the evidence that the plaintiff plans to present and how that evidence demonstrates that the plaintiff should win. The defendant then makes an opening statement along the same lines except concluding that the defendant should win.
Following that, the plaintiff’s case in chief beings, frequently by calling a witness. Witness testimony generally needs to be taken in open court.31
The Federal Rules of Evidence provide extensive regulation as to what evidence is admissible in trial. In general, evidence presented must be relevant. Relevant evidence is that which indicates a claim, defense, or witness credibility is more or less likely than if the evidence was not presented.32 Witnesses can testify as to matters within their personal knowledge of the facts of a case.33 They can offer opinion about matters related to events perceived.34 However, an expert witness is needed to testify as to scientific, technical, or other specialized knowledge.35 Under the rule against hearsay, a witness cannot repeat an out of court statement which is offered as a statement of truth unless an exception applies.36 However, there are exceptions that allow certain kinds of hearsay when there is some indicia of reliability or there is no better way to get the evidence into court.37 Documents can be admitted provided an exception to the rules against hearsay is given and the documents can be authenticated. Authentication is some indicia that the document is whatever the proffering party says it is.38 Documents are either self-authenticating or can be authenticated by a witness.39
After all that, in a jury trial, the defendant can move for judgment as a matter of law stating that under the controlling law, a particular claim cannot be maintained given the evidence produced.40 Similarly, in a bench trial, the defendant can move for summary judgment under FRCP 56.
If the motions for judgment are denied, the trial proceeds to the defendants case in chief. Witness examination operates by calling a witness and then asking a sequence of open ended questions for direct examination. The other side then has the opportunity to ask questions under cross-examination. The process is identical for the plaintiff and the defendant. After the defendant’s case in chief, the trial proceeds to closing statements.
Closing statements are similar to opening statements except that a summary of admitted evidence replaces an expectation of witness testimony. Most importantly, the plaintiff and the defendant tell the trier of fact what outcome is desired.41 In a jury trial, the jury receives instructions from the judge as to how they should make a decision.42 In a bench trial, the judge prepares findings of fact and conclusions of law.43 After that, the judge enters judgment.44
Case Problems
Roger Reeves claims that Sanderson Plumbing Products, Inc. (Sanderson) terminated him because of his age (57) in violation of the Age Discrimination in Employment Act (ADEA). Sanderson responded that Reeves was fired for failing to keep accurate timesheets. Reeves stated that Sanderson should not be believed because one of its employees made inappropriate comments about older employees. Sanderson moved for judgment as a matter of law under Fed. R. Civ. P. 50 stating that there was no connection between Reeves’ age and his termination. Reeves argued that he had made a prima facie case under ADEA, that he provided evidence that Sanderson was not credible, and that should be enough to take the case to the jury. Is Reeves’ case strong enough to go to the jury?45
Dimick sued Schiedt for negligence and the jury awarded a verdict for $500. Dimick thought that was too low and moved for a new trial. The trial judge stated that unless Schiedt agreed to raise the judgment to $1,500, the trial court would grant the motion and institute a new trial. Schiedt agreed, but then appealed stating that U.S. Const. Amend. VII provided that “no fact tried by a jury, shall be otherwise re-examined.” Dimick responded that, were the shoe on the other foot and the parties had settled the case for less than the amount awarded by the jury, the lower judgment would be enforced. Can parties settle for a higher amount than a jury verdict?46
Marley Company made an electrical heater that was in a fire that killed Bonnie Weisgram. Weisgram’s family sued Marley for products liability and at trial, produced three witnesses who stated that a defect in the heater caused Bonnie’s death. A jury found in favor of Weisgram. Marley moved for judgment as a matter of law and judgment for a new trial stating that all of the three witness testimonies were inadmissible and that without evidence of causation, judgment should be entered for Marley. Can a Court of Appeals vacate a jury verdict and enter judgment in favor of the party who lost the jury verdict?47
The Appeal Stage
At the appeal stage, the factual record is set. As U.S. Const. Amend. VII explains, “no fact tried by a jury, shall be otherwise re-examined.” Likewise, facts found by a judge are subject to substantial deference on appeal. Accordingly, appeals raise legal errors rather than a misinterpretation of the factual posture. Appeals are governed by the Federal Rules of Appellate Procedure.
Within 30 days of the entry of judgment, a party seeking a change in the judgment can file a notice of appeal with the district court.48 The party making the appeal is the appellant; the party opposite is the appellee. The appellant files the first brief to which the appellee responds. Then the appellant gets to file a reply brief.49
Both parties have an obligation to put the standard of review in their brief. There are three primary standards of review that come up in this book: de novo, clear error, and abuse of discretion.
De novo is Latin for new and means that the appellate court gives no deference to the legal conclusion of the trial court. Interpretation of a contract requires de novo review on appeal. It does not matter what the trial court concluded, the appellate court will reconsider the matter.
In some cases, there is a mixed question of law and fact on review. This occurs when the facts and law are not disputed, but the application of facts to the law is disputed. Some of these cases are reviewed for clear error. For instance, issues of whether established facts constitute negligence or whether proximate cause is shown are reviewed for clear error. Under this standard, when the trial court’s account of the evidence is plausible in light of the entire record, the court of appeals may not reverse it. This happens even if the court of appeals would have weighed the evidence differently.
