Trial Flashcards
Under the North Carolina Constitution, you are guaranteed a jury trial:
actions about property
By common law, a jury trial is also available:
- All civil actions at common law
- Statutes giving right to jury trial
How to secure rights to jury trial?
The party seeking the jury trial must give written demand
- Serve on all parties within 10 days after last pleading is filed
- Waived if not served timely
When can a jury trial be demanded?
at any point in the pleadings
If a jury trial has already been demanded and the parties decide they dont want a jury trial, then
they can waive it if all the consent of the parites is present
Right to a jury trial can be asserted by a new party that is joined if?
Made within 10 days of being joined
If a jury trial is demanded at state court and it is moved to federal court?
The jury trial remains
In all actions tried without a jury or with an advisory jury, the court shall:
(3)
- judge enters an order that must contain specific finds of fact
- conclusions of law the judge made
- the entry of the appropriate judgment for either side
Default rule for jury verdicts?
has to be unanimous
Parties can stipulate to agreeing less than unanimous
Default number of jurors
12
In N.C. how many preemptory challenges does each side have?
8
In a civil trial, the standard of proof required:
preponderance of the evidence (51%)
A per diem argument is
Calculate the loss per day to the πand then multiply by life expectancy
When a per diem argument is used, what has to happen?
The judge has to tell the jury they are not bound by the estimates of the attorney
+
Tell jury it is not evidence
+
They have an obligation to come up with a lump sum amount
A trial judge enters judgment as a matter of law (also known as a directed verdict or judgment notwithstanding the verdict (J.N.O.V.)) when a party convinces the judge that:
There is no evidence upon which the other party can prevail on a claim
-no reasonable juror could find in favor of the non-moving party on a given claim
If a directed verdict is granted?
The whole case is removed from the jury
- judgments on the merit
- immediately appealable
In ruling on a directed verdict, the court must consider
all the evidence and reasonable inferences in favor of the non-moving party
When can a directed verdict be brought?
2
After the opposing party has been fully heard with respect to the issue or claim
+
Before case submitted to jury
There are “natural” points during the trial for a directed verdict motion to be made:
(3)
- close at π’s evidence
- close at ∆’s evidence
- close of rebuttal evidence
A J.N.O.V. is granted when?
The evidence is insufficient to support the jury’s verdict
If the judge grants a directed verdict before the jury returns a verdict, but the directed verdict is reversed on appeal:
the entire trial must redone
If the case is decided by the jury, the judge can then overturn an unsupportable jury verdict by granting a directed verdict (J.N.O.V.) after the jury verdict; if the judge is then reversed on appeal:
Then the decision of the jury is reinstated
In order to preserve the right to make a JNOV, what must happen?
there must be a directed verdict made
-A JNOV is a renewal of a directed verdict
How to request special jury instructions?
Has to be in writing and served to judge
How to preserve appeal of jury instructions?
Have to object before they are read.
A general verdict is:
just say π wins; or
∆ wins
A special verdict is:
when the jury must conclude specific findings of facts
Additur allows
A judge in N.C. to add damages if the jury verdict is insufficient based on the evidence
≠ federal court
Remittitur allows
A judge in N.C. to remove damages if the jury verdict is excessive based upon the evidence
What is the standard of review for additur and remittitur
abuse of discretion
A Judgement is entered by
2
- judge or jury read verdict in open court and court reporter records
- judge signs a written order
When must a party file a J.N.O.V.?
Within 10 days of entry of final judgment
When must a JNOV be denied?
If there is a scintilla of evidence supporting the verdict.
What happens if a JNOV is joined with a motion for a new trial?
The judge must rule on both
If the judgment notwithstanding the verdict (J.N.O.V.) is granted but reversed on appeal, and the motion for a new trial was conditionally granted:
The new trial will proceed automatically
If the judgment notwithstanding the verdict (J.N.O.V.) is granted but reversed and the motion for a new trial was conditionally denied:
Appellate court decides what happens next
If the trial court grants D’s motion for judgment notwithstanding the verdict:
The π must file for a new trial within 10 days of judgment
If D’s motion for judgment notwithstanding the verdict is denied and D appeals the jury verdict:
π must assert grounds for a new trial
A motion for a new trial, once served, requires that the opposing party
respond with affidavit within 10 days
A motion for a new trial must be made when?
Within 10 days of entry of judgement
Grounds for a new trial
8
a new trial may be granted for the following causes or grounds:
(a) irregularity which prevented fair trial
(b) misconduct of jury or prevailing party
(c) accident or surprise which ordinary prudence could not have guarded against;
(d) newly discovered evidence
(e) manifest disregard by the jury of the judge’s instructions;
(f) damages were insufficient or inadequate
(g) evidence insufficient to justify the verdict;
(h) error in law that occurred in the trial
A party can move for relief from judgement if:
7
1) when there has been mistake, inadvertence, surprise, or excusable neglect;
2) newly discovered evidence
3) fraud in the proceedings
4) judgement is void
5) if the judgment has been satisfied, released, or discharged;
6) any other reasonable grounds
7) Clerical errors
