Civil Procedure Class Notes 12/1/03


Fairman and his colleagues disagree about the importance of preclusion at this stage in our procedural learning.  Fairman thinks it’s less important than, for example, Wilson.


A quick look back at Houchens


We’ve done discovery and we got to summary judgment.  We pretty much brought closure to it, but we ought to review.


The pseudo-widow wants the husband declared dead.  There’s a Virginia statute that she can use for that.  She sues the insurance company to get them to pay out the insurance claims.  The insurance company moves from summary judgment.  When the defendant does this, they are using saying that there is one element that you are trying to prove that simply can’t be proven.


The Celotex standard says that summary judgment should be entered after discovery against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party’s case”.


It’s most typical that the defendant will make this showing based on affidavits.  Say, for example, someone filed an affidavit that says they saw the husband get hit by a bus in Thailand.  But at this stage, Alice doesn’t have to prove that her husband died accidentally.  It’s okay if there’s conflicting evidence, we’ll let that go to trial.  But if there’s no evidence at all for the non-moving party, you’ll get summary judgment.


Norton v. Snapper Power Equipment


What’s up?  Norton was in the commercial lawn-mowing biz and he bought a Snapper mower.  Somehow he gets his fingers snapped off by the mower blades.  He sues Snapper for a couple of things: negligence, warranty, and product liability.  He says that it was defective because it cut off his fingers.


Norton presented his case using expert testimony which basically said that the mower could have been safer if it had a “dead man” device.  Snapper puts on its case.  Then there’s a jury verdict and a judgment.  In a typical trial, the jury verdict would be for or against the plaintiff, and then the judgment would embody some dollar amount the jury found.


The procedural motions in this case include a motion for a directed verdict.  This procedure is important, yet weird, because you have to make the motion multiple times to preserve this “error”.  At the end of Norton’s evidence, Snapper moved for a directed verdict.  That is to say that they’ve already lost because they failed to put on some part of their case.


After Snapper puts on its case, it moves again for the directed verdict.  It’s denied, at least in part, and the case goes to the jury.  The jury finds Snapper 80% responsible.  Then Snapper moves for a judgment notwithstanding the verdict, and the court grants it!  Why would the court grant this motion yet deny the other two which are the same thing?


Directed verdict, judgment notwithstanding the verdict, judgment non obstante veredicto, and J.N.O.V. are all now called judgment as a matter of law.  Check out Rule 50!


Rule 50.  Judgment as a Matter of Law in Jury Trials; Alternative Motion for New Trial; Conditional Rulings


(a) Judgment as a Matter of Law.


(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.


This is pretty similar to summary judgment.  If, considering the evidence in the light most favorable to the nonmovant, a reasonable jury could not reach a contrary verdict, then the court may grant judgment as a matter of law.


This is a conflict between the judge and the jury.  The judge basically says, “Jury!  You’re crazy!  You couldn’t possibly make that decision!  I’m taking it out of your hands.”


What testimony was offered in this case?  How do we know what happened in this case?  It’s all based on Norton’s word.  Nobody else was there when it happened.  We listen to Norton, and then the experts who talked about the “dead man” stuff and how fast such a control would have stopped the blades.


Could a juror have concluded that the product was defective based only on these two pieces of information?


The problem is that you have one story told by the plaintiff, and then the trial judge introduces the court’s own position on the liability issue.  The court says that because Norton can’t remember how he got injured, you can’t tell if a “dead man” device would have helped.


However, the Court of Appeals says that there was enough circumstantial evidence for a jury to conclude that the device was defective.  The Court of Appeals concludes that this was a misuse of judgment notwithstanding the verdict.


If the plaintiff successfully appeals a directed verdict, they get a new trial.  However, if the plaintiff successfully appeals a judgment notwithstanding the verdict, they get the verdict that the jury originally entered immediately.


The judge here works the way he does because he hopes that the jury will come back with a zero verdict so he doesn’t have to grant the motion.  It seems repetitive to make this motion over and over, but it’s essential.  It’s a lot more efficient to grant the judgment as a matter of law instead of a directed verdict.


One more thought about this case: how is JNOV like summary judgment?  How are they similar?  They both view the evidence in the light most favorable to the nonmovant.  The key similarity is that both take cases out of the hands of the jury.  When you look at the standard they use: “no genuine issue as to any material fact” from Rule 56 versus “no legally sufficient evidentiary basis” from Rule 50…Fairman says we can think of these two standards as the same.


What’s next?  It’s preclusion.  What is the result of that verdict to future litigation between the same litigants or those litigants and other litigants?


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