Controlling the Jury; Jury Instructions

Question 1

Controlling the Jury; Jury Instructions

Answer 1

In a civil jury trial, the trial judge typically gives instructions to the jury at two points in during the trial.

• She will charge the jury before the trial begins, explaining the jurors’ role, introducing the parties and lawyers, stating the parties’ theories of the case.
• She will most likely explain that opening statements are not evidence, that the jurors should not infer judicial bias based on rulings on objections, the effect of objections, and the like.
• The judge will also instruct the jury after the parties’ closing arguments, and before the jury retires to deliberate.
• This will be instruction on the law that governs the action.

Question 2

FRCP 51 dictates the process for preparing and giving jury instructions.

Answer 2

• Typically, the judge will order the parties to submit proposed instructions at or before Final Pretrial Conference.
• The court usually wants the parties to confer on this, as they do on the Final Pretrial Statement/Order, and to come to the conference with a set of instructions on which they have agreed, as well as instructions on which they cannot agree.
• Most jurisdictions have “form” or “pattern” jury instructions that the parties may use, as applicable, for their case. These instructions are usually created by scholars or local bar associations.
• In Michigan, these are called the Model Civil Jury Instructions, and are created by a State Bar committee comprised of judges and lawyers.
• These instructions don’t have the force of law or a court rule, but are accepted by the courts as generally appropriate in a given case.
• The task of the committee is to ensure that the Model instructions are “concise, understandable, conversational, unslanted, and not argumentative.”
• Typically, parties will stipulate to the use of some instructions (probably most, especially the pattern instructions), and disagree as to use of some (usually those that are specific to the facts of the particular case and written by one of the parties’ attorneys). The judge will decide which instructions to give to the jury.

Question 3

Parties must object to the giving of what they believe are improper instructions in order to preserve their right to appeal this issue.

Answer 3

• Under FRCP 51, the court is required to give parties an opportunity to object on the record and out of the jury’s hearing before the instructions and closing arguments are given.
• The objecting party must object with specificity, stating the grounds for the objection.
• Failure to timely object results in waiver of the right to appeal the issue, UNLESS party can establish “plain error.” Plain error means:
• The error was obvious and clear under current law;
• The error affected the substantial rights of the party; and
• The error likely resulted in a miscarriage of justice.

Question 4

FRCP 59: New Trials

Answer 4

Rule 59 allows a trial judge to override a jury verdict by ordering a new trial. The rule applies to both bench trials and jury trials.

• A motion for new trial must be filed within 28 days after entry of judgment in the case.
• A motion for new trial may also be made during a trial, if an error is made that likely prejudiced the jury. If granted, this is referred to as a “mistrial”.
• A new trial may be ordered on motion or sua sponte by the court.
• A party must make a motion for a new trial if he intends to seek that remedy on appeal.
• Exception: Where a party is appealing a denial of its motion for judgment notwithstanding the verdict, and the opposing party wants to respond with two alternative arguments: (1) denial of the JNOV motion was appropriate, OR (2) a new trial should be granted. The opposing party may assert the new trial option for first time on appeal in that situation – see FRCP 50(e).
• Rule 59 doesn’t expressly identify the grounds for granting a motion for new trial. Rather, the reasons upon which a new trial motion may be granted are found in the common law. They include:
• Verdict against the weight of the evidence
• Verdict is excessive or inadequate
• Newly discovered evidence: Must have existed at time of trial, must be admissible, must have been excusably overlooked, must be likely to alter trial’s outcome.
• Improper conduct by counsel, the court, a witness, a juror: For example, errors in jury instructions or evidentiary rulings, improper argument to the jury, dishonesty by juror during voir dire.
• Outside influences affecting the jury: For example, an outsider attempting to influence a juror, or the jury’s access to and use of outside evidence.

Question 5

Verdict Against the Weight of the Evidence:

Answer 5

This is the most common basis for a new trial motion. It is essentially a “soft” form of a directed verdict, allowing a judge who is pretty sure – but not positive – that the wrong side won to send the whole case through the system again.

• Because the grant of a new trial doesn’t take the case away from the jury entirely – i.e., the case is going to ANOTHER jury for retrial – there is generally a lower standard for granting a new trial motion on this ground than there is for granting a directed verdict motion. This is because the directed verdict takes the issue away from the jury entirely, which implicates 7^th Amendment rights.
• The standard for granting new trial on this basis: Judge must find the verdict to be clearly erroneous. He must be left with a definite and firm conviction that an error has been made. The verdict is clearly wrong because it is not supported by the “weight of the evidence.”
• Unlike with a motion for summary judgment or directed verdict – when the judge is taking the case or issue away from the jury entirely – a court considering new trial motion based on the verdict being against the weight of the evidence can weigh the evidence and assess the credibility of the parties.
• This doesn’t violate the 7^th Amendment because, again, the judge in granting a new trial motion is not taking the case away from the jury. She is simply deciding that THIS jury seems likely to have made an error, so we’re going to let ANOTHER jury take a look at the case.
• However, courts are sensitive to the fact that weighing the evidence – i.e., making decisions based on the quality of the evidence and the credibility of witnesses – is really the jury’s role, and judges don’t take that lightly.
• It is not uncommon for a party to file a motion for new trial together with a renewed motion for judgment as a matter of law (i.e., for judgment notwithstanding the verdict) under FRCP 50(b).
• FRCP 50(b) and (c) provides that a party may file motion for new trial jointly with a motion for JNOV, or in the alternative. If the court grants the motion for JNOV, then it must ALSO conditionally rule on motion for new trial.
• If the JNOV motion is granted, then the motion for new trial will undoubtedly also be granted if the basis for that motion is that the verdict is against the weight of the evidence –

Question 6

Why would the rule instruct the court to conditionally rule on the new trial motion? If court grants JNOV, isn’t the new trial motion moot?

Answer 6

• The trial court must rule on both motions for purposes of appeal. Such a ruling gives the appellate court an alternative other than just affirming or reversing the grant of JNOV with reinstatement of jury verdict.
• The appellate court will review BOTH the JNOV and new trial motion, and may decide that JNOV was inappropriate BUT that there should be a new trial.

Question 7

Verdict is Excessive or Inadequate

Answer 7

A court may order a new trial on the grounds that the jury’s verdict is excessive or inadequate as a matter of law.

• In federal court, a verdict is inadequate as a matter of law if it “shocks the judicial conscience.”
• The court determines this by considering the facts of the case, the applicable law, and possibly damages awarded in similar cases.
• In lieu of granting a new trial due to an excessive or inadequate jury verdict, a court may apply the doctrines of “remittitur” or “additur”.
• The court can offer the appropriate side the appropriate amount of damages in lieu of a new trial. If the party accepts this offer, then the amount of the award is adjusted and there is no new trial.
• Example – Remittitur: Jury verdict for plaintiff, defendant moves for new trial on the grounds that the award was excessive as a matter of law.
• If the court AGREES with the defendant, then the court can offer the plaintiff a reduced award in the amount that the court deems reasonable, in lieu of granting the defendant’s motion for new trial. If the plaintiff accepts this offer, then the judgment is entered for that amount and there is no new trial.
• The parties will make arguments to the judge regarding what is the appropriate amount for the judgment, and the judge will determine the appropriate amount based on these arguments and the law.
• Most courts will award the highest amount it finds to be reasonable, since the jury had apparently found that an even higher amount was warranted.
• Example – Additur: Jury verdict for the plaintiff, and the plaintiff moves for new trial on damages only, arguing that the award is too low, in light of the liability finding.
• If the court AGREES with the plaintiff, then the court can offer the defendant an increased award in the amount that the court deems reasonable, in lieu of granting the plaintiff’s motion for new trial. If the defendant accepts this offer, then the judgment is entered for that amount and there is no new trial.
• As with remittitur, the parties will make arguments to the judge as to what is the appropriate amount for the judgment, and the judge will determine the appropriate amount based on these arguments and the law.
• Most courts will award the lowest amount that it finds to be reasonable.
• Remittitur has been held to be constitutional in federal courts. Additur has been held to violate 7^th Amendment because it goes beyond what the jury awarded in the case.
• Remittitur existed at common law, before the 7^th Amendment was adopted, and because the 7^th Amendment “preserved” the right to jury trial as it existed at common law, it also preserved remittitur.
• Federal courts can engage in additur only on a very limited basis - to correct an obvious math error.
• The 7^th Amendment does not apply to the states, and some states permit the use of both remittitur and additur.
• As previously stated, if remittitur/additur is rejected, then there will be a new trial. This may or may not be limited to damages.
• Depends on whether court finds the issues of liability inextricably linked to the issue of damages, such that the jury can’t really decide one without deciding the other.

Question 8

“Process Errors”:

Answer 8

New trials can be granted where the jury had too much, too little, or the wrong kind of evidence in front of it as a result of judicial, juror, or lawyer error or misconduct.

• For example – evidence improperly admitted, or prejudicial statements made by the judge or counsel, or a juror bringing her own evidence (not admitted at trial) into the deliberation room.
• A court deciding a motion for new trial based on an alleged process error has to decide three issues:
• First, whether the error occurred.
• Second, whether the error affected the right to a fair trial (i.e., the error must have caused harm).
• FRCP 61 (the “harmless error rule”): No error in admitting or excluding evidence – or any other error by the court or a party – is grounds for granting a new trial UNLESS that error affected any party’s substantial rights.
• Third, whether the party made a timely and specific objection to the error.

Question 9

Error in Jury Deliberations

Answer 9

• Jurors may not impeach their own verdict and are not competent to testify about any aspect of their thought process or deliberations.
• Any inquiry into the jury’s deliberative process or a juror’s mental process for purposes of impeaching the jury’s verdict is impermissible under FRE 606(b) EXCEPT with regard to extraneous prejudicial information or outside influence.
• Jurors may be asked whether any extraneous material or information was brought to their attention, but NOT the extent to which such information affected their deliberations.
• In determining the prejudicial effect of extraneous information, the court does NOT examine the effect on THIS jury.
• Rather, the court must make an objective inquiry – how would the extraneous information affect the “typical juror.”
• “Where an extraneous influence is shown, the court must apply an objective test, assessing for itself the likelihood that the influence would affect a typical juror.”
• If the court finds that the jury received extraneous prejudicial information or was subject to outside influence, and that this information or influence was such that it would have impacted the deliberations – and ultimately the verdict – of a typical juror, then this can provide a basis for granting a new trial.