Ch 44:1 Overview (McDonald & Carlson)

Question 1

The Weight of the Evidence at trial Ranges From/To:

Give List of Four Answers

Answer 1

1. No Evidence;
2. Prima Facie Showing;
3. Preponderance of the Evidence;
4. Clear and Convincing Evidence.

Question 2

To determine the sufficiency of the evidence, the evidence goes From/To:

(Give List of Five Answers)

Answer 2

1. No Evidence;
2. To the range called “factually insufficient evidence,”
3. To the range which is for the fact finder to resolve,
4. To the range called “the great weight and preponderance of the evidence,”
5. To proof “as a matter of law.”

Question 3

If the evidence is at either extreme – either “no evidence” or proof “as a matter of law,” the trial court should:
(Two Alternatives depending on Point in Time of Trial)

Answer 3

GRANT:

1. A Motion for Directed Verdict, OR
2. A Motion for Judgment n.o.v.

Question 4

If the evidence is in either the factual insufficiency range or the great weight and preponderance range, the trial court MUST:

Answer 4

SUBMIT the case to the FACT FINDER

                      AND

RENDER a Judgment on the Verdict,

BUT is then obligated to GRANT a NEW TRIAL on request after rendition of judgment if the verdict does not comport with the evidence.

Question 5

On appeal of the case when there is “no evidence” or proof “as a matter of law,” AND a point challenging the legal sufficiency of the evidence is raised, the appellate court should:

Answer 5

RENDER Judgment in favor of the party whose position is vindicated by the evidence.

Question 6

On appeal of a case when the evidence is “factually insufficient” or “against the great weight and preponderance of the evidence,” and a judgment is rendered by the trial court but no new trial is granted, the appellate court should:

Answer 6

REVERSE the trial court’s judgment AND

REMAND the case for retrial.

Question 7

There is a difference between preservation of a LEGAL SUFFICIENCY challenge in a JURY TRIAL and a BENCH TRIAL.

(Hint: Jury Trial-5* items; Bench Trial-0)

Answer 7

During a JURY TRIAL, a legal sufficiency challenge is preserved by:

1. A Motion for Directed Verdict;
2. An Objection to a Jury Question or Instruction;
3. A Motion to Disregard an Answer to a Jury Question;
4. A Motion for a Judgment n.o.v.

5.* A Motion for New Trial, BUT most courts say that preservation of error by Motion for New Trial alone forfeits the right to a reversal and rendition and can lead only to a remand, assuming the challenge is sustained.

Question 8

A FACTUAL SUFFICIENCY challenge in a JURY TRIAL must be preserved by a:

Answer 8

Motion for New Trial, or in the case of excessive damages, by motion for remittitur.

Question 9

It is not necessary to preserve a complaint regarding the sufficiency of the evidence in a:

Answer 9

NON-JURY TRIAL or BENCH TRIAL

The Challenge can be raised for the first time in the appellate brief.

Question 10

Scope of Review:

In reviewing the legal sufficiency of the evidence, the appellate court should…

Answer 10

… look through the entire record, and consider only the facts and inferences consistent with the jury verdict or trial court findings.

Question 11

Scope of Review:

In reviewing the factual sufficiency of the evidence, the appellate court should…

Answer 11

… look through the entire record, and can consider evidence and inferences both FOR and AGAINST the jury verdict or trial court findings.

Question 12

True or False: Appellate review of actual damages is a review of the sufficiency of the evidence.

Answer 12

True