JML: Rule 50 Weighing Evidence and Credibility In weighing evidence, a jury must consider demeanor and credibility in addition

to the words of the witness. Technically a witness' demeanor can lead a jury to rightly believe the opposite of his testimony. Appellate courts look only at the words that were said, trial court proceedings take lights and shadows of the trial/testimony into account. Having more witnesses on one side than the other is not dispositive. 2nd Circuit has ruled that a witness is not "must-believe" solely by being unimpeached, uncontradicted, and disinterested; even then, demeanor is a factor. Many of the United States Courts of Appeals are more attracted than the Second Circuit to a rule that would require judge or jury to accept the uncontradicted testimony of a disinterested witness whose credibility has not been impeached in any fashion. The Reeves case at p. 1085 now gives an answer, at least for the time being, but explains it only by citation. Standard for JML: Is the evidence legally sufficient to allow the jury to decide the case? Legal sufficiency: o Galloway v. United States: JML has historical precedent through rulings and analysis of the "rules of common law" referred to by the 7th amendment. References substantial v. scintilla test. o Scintilla Test: judge will deny the motion and refer the case to the jury if there is any - "a scintilla of" - evidence on which the jury might possibly redner a verdict for the nonmovant. Less authority to intrude. o Substantial Evidence Test: The court will grant the motion unless there is sufficient or substantial evidence suggesting that the jury might decide for the nonmovant. Great judicial authority to intrude. Trend. o Penn Railroad Co v. Chamberlain: Lower court ruled since had an eyewitness with facts supporting their inference, they had a scintilla to send to the jury. Supreme Court rejected the Scintilla Rule and held that the trial judge could not allow a verdict based on facts inferred from one witness' testimony when the uncontradicted testimony of unimpeached witnesses indicated that the inferred fact never occurred evidence was overwhelmingly against the party with the burden. y Burden of Proof: If the movant for JML has the burden of proof, nonmovant's task to show there is substantial evidence to create an issue for the jury is much easier than when the nonmoving party has the burden and must show substantial evidence (or scintilla) for each element of his burden.  Denman v. Spain: Court granted JNOV, saying that a verdict must be based on more than mere speculation, even if such an inference could be drawn. Ruled could not meet burden of showing evidence of negligence and proximate cause because no one knew what happened. y Availability of Evidence: As in Galloway, if there is no possibility of a nonmovant securing more evidence, the court is more likely to grant JML on insufficiency of nonmovants evidence. Judge must view the evidence in the light most favorable to the nonmoving party in order to determine whether there is sufficient evidence to raise a jury issue. Nonmovant has the benefit of all legitimate inferences that might be drawn from the evidence. The case should go to the jury

even if underlying facts are not disputed but conflicting inferences may be drawn from those facts. (Rogers v. Missouri Pacific R.R.) o Lavender v. Kurn test for whether an inference is legitimate and thus entitled to be drawn: Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. All courts recognize this liberal construction principle but it is not applied uniformly. o In some cases, the moving party's evidence is not considered; whether sufficient evidence is presented is determined only by evidence introduced by nonmovant. o Reeves v. Sanderson Plumbing Test adopted for federal courts: judges should consider all the evidence that has been presented at the time of the motion, not weighing credibility, but drawing all reasonable inferences in favor of the nonmovant; the court should give credence to the evidence favoring the nonmonvant as well as that evidence supporting the moving party that is uncontradicted, unimpeached, and from disinterested witnesses. JML and Issues of Credibility: assessing the credibility of witnesses is the jury's domain and presents a problem for JML. Under the following circumstances the court is not weighing the evidence, but is rather determining that there is not sufficient evidence to create an issue of credibility: o An assertion that credibility is at issue, resting alone, will not suffice to prevent the court from directing a verdict if all of the objective or indisputable evidence indicates that a particular piece of testimony is incredible. (Penn R.R. v. Chamberlain) o Uncontradicted, unimpeached, disinterested testimony may support the entry of a directed verdict because the jury should not be allowed to disbelieve that testimony. o Less clear is the question of whether JML may be entered because the evidence presented is inherently incredible or because some of the evidence of physical facts suggest that other testimony is incredible and should be ignored; courts split, depends on particular judge's deference to the jury. .... New Trials; Rule 59 New Trials: 1119-1127 (Rule 59) (Rule 61); 1138-1143; Notes, 1232-1233; 1144-1150 Grounds for New Trial: Some states list specific grounds upon which to base new trial motions. Other rules, like the federal rule, list any ground "heretofore recognized;" prejudicial errors in evidentiary rulings or jury instructions, attorney or jury misconduct, newly discovered evidence, or because the verdict appears against the weight of the evidence or is legally excessive or inadequate in amount. o Abuse of Discretion Standard: A trial judge has exceedingly broad discretion to grant a new trial as a corrective measure, having seen the trial take place first-hand. A judge's decision to grant or deny a new trial motion will only be reversed for abuse of

discretion. On appellate review, trial courts have great latitude in granting new trials and less latitude in denying new trials. o Ginsburg v. Williams: holds that trial courts must state a ground for granting a new trial under Rule 59 (or a state analog) (such as irregularities depriving a party of a fair trial or insufficiency of the evidence) and not just order a new trial on the grounds that substantial justice has not been done. y Coppo v. Van Wieringen: Court held that a trial court has the inherent discretionary power to grant a new trial and only state the ground that substantial justice has not been done - trial court can observe lights and shadows of the trial, witness credibility, and appeals court should .: defer to trial court. y Magnani v. Trogi: Court can grant new trial when jury verdict is incoherent/indiscernible. Robb v John C. Hickey, Inc.: Court can grant new trial when verdict is uncertain or ambiguous. Kramer v. Kister: judge can order new trial when the possibility of juror misconduct or coercion is possible. New Trial Sua Sponte: Judges can grant new trials sua sponte, in keeping with the notion that this device allows the judge to correct any errors that occurred, thereby avoiding time consuming appeals and assuring just and appropriate results. Harmless Error: Rule 61 says errors are harmless unless they influence substantial rights; the question is whether any errors have been committed that singly or taken together may have prejudiced the result. Limit on New Trial Orders/7th Amendment: For a judge to order multiple new trials for judgment being against the weight of the evidence would encroach on the 7th amendment jury trial right. New Trial on Sufficiency of the Evidence: Overlaps with JML (DV+JNOV), both of which are also based on legal insufficiency of the evidence. New trial motion has a lower standard than JML; a new trial may be granted even though the evidence might not be insufficient enough to grant DV/JNOV. The evidence may be such that reasonable people could find as the jury did, but the verdict still may be manifestly against the weight of the evidence; trial judge can therefore grant new trial (although he is not required to do so). (Aetna v. Yeatts) o Garrison v. United States: Where this is substantial evidence in support of a plaintiff's case, the judge may not direct a verdict against him, even though he may not believe his evidence or may think the weight of ev is on the other side, because jury weighs credibility. He may however set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or based upon evidence which is false, for even though the evidence may be sufficient to get past a directed verdict, the court still has a duty to exercise power of the proceedings to prevent a miscarriage of justice. This grnating or refusing of a new trial is a matter resting in the sound discretion of the trial judge, and his action theron is not reviewable on appeal save in the most exceptional circumstances. o Aetna v. Yeatts: Jury returned verdict for based solely on the contradicted testimony of the ; court denied motion for new trial (and for JNOV since DV motion was not made).

Dyer v. MacDougall: The important difference between a trial judge's power on granting new trial and DV is that on new trial motion he can base his actions on his belief or disbelief in witnesses (credibility judgments do not violate the 7th amendment because new trial sends case to another jury), while in ruling on DV motion he cannot (must assume all evidence including demeanor in favor of the ) o Standard for New Trial v. JML: Sufficiency of the evidence is the JML standard, the verdict being against the great weight of the evidence is the new trial standard.
o

Partial New Trials: A court may determine errors in a trial can be . Partial new trials are used most commonly when the tainted issues relate solely to damages, so new trial related to damages is inappropriate. Liability and damages can often be closely related; low damage awards can compensate for uncertainties on liability, which would warrant a full new trial. Conditional New Trials: When the error in a first trial involves the amount of damages, a judge can save time and expense by order a conditional new trial. The court states it will grant a new trial unless the nonmoving party accepts a specific reduction or addition to the verdict amount. Remittitur (must be coupled with option for new trial due to 7th Amendment concerns) is recognized almost everywhere due to common law history, whereas additur has not been accepted in all courts (SCOTUS ruled 5-4 violates 7th amendment, using distinction between taking away some of existing jury verdict versus impermissibly adding to jury verdict) o How much should be remitted or added? Jusge may set the amount at y (1) the legally sufficient minimum a jury could have awarded y (2) the maximum that would have been permitted y (3) a figure somewhere between these two extremes that the judge believes justified by the evidence. Party who moves for new trial has to accepted remitted/added amount or appeal. .... JNOV Judgment n.o.v.: 1092-1094; Unitherm, Supp. 72-78; Neely, 1075- 1076 (Review Rule 50); Weisgram, Supp. 79-82. Rationale for JNOV: Normally a court will wait to enter judgment as a matter of law until after the jury has reached a verdict, rather than at the close of evidence. This conserves judicial resources in that if the JML is overturned, the appeals court can reinstate the original jury verdict OR order a new trial. Combination of JNOV and New Trial Motion: If a party loses a JNOV motion, they can request a new trial instead, and sometimes a court may order a new trial even if the party moving for JNOV has not requested a new trial in the alternative. The most common practice is for the losing party at trial to make simultaneous motions for JNOV and new trial. Scope of Appellate Review of JML: In a final judgment rule jurisdiction, like federal courts, the grant of either motion results in the entry of judgment and may be appealed immediately, as does denial of JNOV. DV denied the decision is interlocutory and (along with JNOV denied for

new trial) appeal must wait until final judgment. Appeals court can find original judgment erroneous and reverse+order new trial or grant JNOV. Ct.App. will normally defer to trial judge's conditional order of a new trial if JNOV is reversed, but it can reinstate original judgment. If there was only motion for JNOV, not new trial, the Ct.App. can order a new trial, especially if it thinks current evidence is insufficient but other evidence might be available. May reverse JNOV and remand case to trial court to determine if new trial is necessary or reinstate verdict. Slocum: moves for DV at the close of all the evidence - trial court denies; Ct.App. says entitled to JML. SCOTUS holds that once a trial court has denied a party's DV motion and allowed case to go before a jury, the only way to address an improper jury verdict was to order a new trial. Baltimore & Carolina Line, Inc. v. Redman (294 U.S. 654): holds that under the 7th Amendment, JNOV can only be granted if the court reserved judgment on a motion for JML before the verdict; the court had the authority under common law to do so at the time the 7th amendment was drafted. Two reasons (1) common law King's bench precedent and (2) nobody objected. Automatic Reservation under Rule 50(b): Under Rule 50(b), even if a preverdict motion for judgment as a matter of law is denied, there is an automatic reservation of decision by the court. JNOV Restrictions: motions typically cannot be granted sua sponte (formal requirement of a motion provides nonmoving party the opportunity to request a new trial in the alternative), they cannot be granted unless a directed verdict motion was made, and a JNOV can only be granted on grounds advanced in the earlier motion. Unitherm v. ConAgra: A party denied a motion for JML under Rule 50(a) may renew their motion under Rule 50(b) and may file a joint or alternative motion under Rule 59 for a new trial; if they do not renew 50(b) or file for a new trial, a Ct. App. cannot overturn the verdict for insufficiency of evidence, due to 7thA concerns and precedent. Dissent argued that congress have SCOTUS and Ct.App statutory authority to review all matters of law and that a denied Rule 50(a) motion reserves the sufficiency of evidence question as a matter of law. Neeley v. Martin K. Eby Construction Co. (386 US 317): SCOTUS upheld a Ct. App.'s right to grant a JNOV pursuant to a properly made Rule 50(b) motion, stating "there is no greater restriction on the province of the jury when an appellate court grants judgment n.o.v than when a trial court does," and there was no obvious reason to remand the decision to the trial court. 's objection that she had no opportunity to raise claims for a new trial was baseless because she had not stated conditional 50(e) grounds for new trial in the event Ct.App. granted JNOV and because Ct.App. could have granted a new trial regardless. Weisgram v. Marley Co: SCOTUS upheld a Ct. App. decision to strike expert testimony and then rule the remaining evidence was insufficient to support a verdict for (previously prevailing) ; 28 U.S.C. 2106 and Neeley support Ct.App.'s ability to issue JNOV, and Rule 50(e), while indicating a Ct.App. can remand a case to trial court for new trial consideration if in the interest

of fairness it sees fit, but is not required to do so - in this case both parties had opportunities to argue their sides fully and was on notice that objected to experts.