{"id":37,"date":"2014-09-17T00:42:07","date_gmt":"2014-09-17T00:42:07","guid":{"rendered":"https:\/\/courses.candelalearning.com\/buslegalenv\/?post_type=chapter&#038;p=37"},"modified":"2021-01-25T02:03:47","modified_gmt":"2021-01-25T02:03:47","slug":"3-4-the-pretrial-and-trial-phase","status":"publish","type":"chapter","link":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/chapter\/3-4-the-pretrial-and-trial-phase\/","title":{"raw":"The Pretrial and Trial Phase","rendered":"The Pretrial and Trial Phase"},"content":{"raw":"<div class=\"bcc-box bcc-highlight\">\r\n<h3>Learning Objectives<\/h3>\r\nBy the end of this section, you will be able to:\r\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\r\n \t<li>Understand how judges can push parties into pretrial settlement.<\/li>\r\n \t<li>Explain the meaning and use of directed verdicts.<\/li>\r\n \t<li>Distinguish a directed verdict from a judgment n.o.v. (\u201cnotwithstanding the verdict\u201d).<\/li>\r\n<\/ul>\r\n<\/div>\r\nAfter considerable discovery, one of the parties may believe that there is no triable issue of law or fact for the court to consider and may file a motion with the court for summary judgment. Unless it is very clear, the judge will deny a summary judgment motion, because that ends the case at the trial level; it is a \u201cfinal order\u201d in the case that tells the plaintiff \u201cno\u201d and leaves no room to bring another lawsuit against the defendant for that particular set of facts (res judicata). If the plaintiff successfully appeals a summary judgment motion, the case will come back to the trial court.\r\n\r\nPrior to the trial, the judge may also convene the parties in an effort to investigate the possibilities of settlement. Usually, the judge will explore the strengths and weaknesses of each party\u2019s case with the attorneys. The parties may decide that it is more prudent or efficient to settle than to risk going to trial.\r\n<div id=\"mayer_1.0-ch03_s04_s01\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Pretrial Conference<\/h2>\r\nAt various times during the discovery process, depending on the nature and complexity of the case, the court may hold a pretrial conference to clarify the issues and establish a timetable. The court may also hold a settlement conference to see if the parties can work out their differences and avoid trial altogether.\r\n\r\nThree methods of alternative dispute resolution are negotiation, mediation, and arbitration. Negotiation is a process in which parties attempt to settle their dispute without going to court, with or without attorneys representing them. In mediation, a neutral third party acts as a communicating agent between the parties to help them negotiate a settlement. A more formal method is arbitration in which an arbitrator (a neutral third party or panel of experts) hears the dispute and imposes a resolution on the parties.\r\n\r\nOnce discovery is complete, the case moves on to trial if it has not been settled. Most cases are settled before this stage; perhaps 85 percent of all civil cases end before trial, and more than 90 percent of criminal prosecutions end with a guilty plea.\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch03_s04_s02\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Trial<\/h2>\r\nAt trial, the first order of business is to select a jury. (In a civil case of any consequence, either party can request one, based on the Sixth Amendment to the US Constitution.) The judge and sometimes the lawyers are permitted to question the jurors to be sure that they are unbiased. This questioning is known as the voir dire (pronounced vwahr-DEER). This is an important process, and a great deal of thought goes into selecting the jury, especially in high-profile cases. A jury panel can be as few as six persons, or as many as twelve, with alternates selected and sitting in court in case one of the jurors is unable to continue. In a long trial, having alternates is essential; even in shorter trials, most courts will have at least two alternate jurors.\r\n\r\nIn both criminal and civil trials, each side has opportunities to challenge potential jurors for cause. For example, in the Robinsons\u2019 case against Audi, the attorneys representing Audi will want to know if any prospective jurors have ever owned an Audi, what their experience has been, and if they had a similar problem (or worse) with their Audi that was not resolved to their satisfaction. If so, the defense attorney could well believe that such a juror has a potential for a bias against her client. In that case, she could use a challenge for cause, explaining to the judge the basis for her challenge. The judge, at her discretion, could either accept the for-cause reason or reject it.\r\n\r\nEven if an attorney cannot articulate a for-cause reason acceptable to the judge, he may use one of several peremptory challenges that most states (and the federal system) allow. A trial attorney with many years of experience may have a sixth sense about a potential juror and, in consultation with the client, may decide to use a peremptory challenge to avoid having that juror on the panel.\r\n\r\nAfter the jury is sworn and seated, the plaintiff\u2019s lawyer makes an opening statement, laying out the nature of the plaintiff\u2019s claim, the facts of the case as the plaintiff sees them, and the evidence that the lawyer will present. The defendant\u2019s lawyer may also make an opening statement or may reserve his right to do so at the end of the plaintiff\u2019s case.\r\n\r\nThe plaintiff\u2019s lawyer then calls witnesses and presents the physical evidence that is relevant to her proof. The direct testimony at trial is usually far from a smooth narration. The rules of evidence (that govern the kinds of testimony and documents that may be introduced at trial) and the question-and-answer format tend to make the presentation of evidence choppy and difficult to follow.\r\n\r\nAnyone who has watched an actual televised trial or a television melodrama featuring a trial scene will appreciate the nature of the trial itself: witnesses are asked questions about a number of issues that may or may not be related, the opposing lawyer will frequently object to the question or the form in which it is asked, and the jury may be sent from the room while the lawyers argue at the bench before the judge.\r\n\r\nAfter direct testimony of each witness is over, the opposing lawyer may conduct cross-examination. This is a crucial constitutional right; in criminal cases it is preserved in the Constitution\u2019s Sixth Amendment (the right to confront one\u2019s accusers in open court). The formal rules of direct testimony are then relaxed, and the cross-examiner may probe the witness more informally, asking questions that may not seem immediately relevant. This is when the opposing attorney may become harsh, casting doubt on a witness\u2019s credibility, trying to trip her up and show that the answers she gave are false or not to be trusted. This use of cross-examination, along with the requirement that the witness must respond to questions that are at all relevant to the questions raised by the case, distinguishes common-law courts from those of authoritarian regimes around the world.\r\n\r\nFollowing cross-examination, the plaintiff\u2019s lawyer may then question the witness again: this is called redirect examination and is used to demonstrate that the witness\u2019s original answers were accurate and to show that any implications otherwise, suggested by the cross-examiner, were unwarranted. The cross-examiner may then engage the witness in re-cross-examination, and so on. The process usually stops after cross-examination or redirect.\r\n\r\nDuring the trial, the judge\u2019s chief responsibility is to see that the trial is fair to both sides. One big piece of that responsibility is to rule on the admissibility of evidence. A judge may rule that a particular question is out of order\u2014that is, not relevant or appropriate\u2014or that a given document is irrelevant. Where the attorney is convinced that a particular witness, a particular question, or a particular document (or part thereof) is critical to her case, she may preserve an objection to the court\u2019s ruling by saying \u201cexception,\u201d in which case the court stenographer will note the exception; on appeal, the attorney may cite any number of exceptions as adding up to the lack of a fair trial for her client and may request a court of appeals to order a retrial.\r\n\r\nFor the most part, courts of appeal will not reverse and remand for a new trial unless the trial court judge\u2019s errors are \u201cprejudicial,\u201d or \u201can abuse of discretion.\u201d In short, neither party is entitled to a perfect trial, but only to a fair trial, one in which the trial judge has made only \u201charmless errors\u201d and not prejudicial ones.\r\n\r\nAt the end of the plaintiff\u2019s case, the defendant presents his case, following the same procedure just outlined. The plaintiff is then entitled to present rebuttal witnesses, if necessary, to deny or argue with the evidence the defendant has introduced. The defendant in turn may present \u201csurrebuttal\u201d witnesses.\r\n\r\nWhen all testimony has been introduced, either party may ask the judge for a <span class=\"im_margin_term\"><span class=\"im_glossterm\">directed verdict<\/span><\/span>\u2014a verdict decided by the judge without advice from the jury. This motion may be granted if the plaintiff has failed to introduce evidence that is legally sufficient to meet her burden of proof or if the defendant has failed to do the same on issues on which she has the burden of proof. (For example, the plaintiff alleges that the defendant owes him money and introduces a signed promissory note. The defendant cannot show that the note is invalid. The defendant must lose the case unless he can show that the debt has been paid or otherwise discharged.)\r\n\r\nThe defendant can move for a directed verdict at the close of the plaintiff\u2019s case, but the judge will usually wait to hear the entire case until deciding whether to do so. Directed verdicts are not usually granted, since it is the jury\u2019s job to determine the facts in dispute.\r\n\r\nIf the judge refuses to grant a directed verdict, each lawyer will then present a closing argument to the jury (or, if there is no jury, to the judge alone). The closing argument is used to tie up the loose ends, as the attorney tries to bring together various seemingly unrelated facts into a story that will make sense to the jury.\r\n\r\nAfter closing arguments, the judge will instruct the jury. The purpose of jury instruction is to explain to the jurors the meaning of the law as it relates to the issues they are considering and to tell the jurors what facts they must determine if they are to give a verdict for one party or the other. Each lawyer will have prepared a set of written instructions that she hopes the judge will give to the jury. These will be tailored to advance her client\u2019s case. Many a verdict has been overturned on appeal because a trial judge has wrongly instructed the jury. The judge will carefully determine which instructions to give and often will use a set of pattern instructions provided by the state bar association or the supreme court of the state. These pattern jury instructions are often safer because they are patterned after language that appellate courts have used previously, and appellate courts are less likely to find reversible error in the instructions.\r\n\r\nAfter all instructions are given, the jury will retire to a private room and discuss the case and the answers requested by the judge for as long as it takes to reach a unanimous verdict. Some minor cases do not require a unanimous verdict. If the jury cannot reach a decision, this is called a hung jury, and the case will have to be retried. When a jury does reach a verdict, it delivers it in court with both parties and their lawyers present. The jury is then discharged, and control over the case returns to the judge. (If there is no jury, the judge will usually announce in a written opinion his findings of fact and how the law applies to those facts. Juries just announce their verdicts and do not state their reasons for reaching them.)\r\n\r\n<\/div>\r\n<div id=\"mayer_1.0-ch03_s04_s03\" class=\"im_section\">\r\n<h2 class=\"im_title im_editable im_block\">Posttrial Motions<\/h2>\r\nThe losing party is allowed to ask the judge for a new trial or for a judgment notwithstanding the verdict (often called a <span class=\"im_margin_term\"><span class=\"im_glossterm\">judgment n.o.v.<\/span><\/span>, from the Latin <em class=\"im_emphasis\">non obstante veredicto<\/em>). A judge who decides that a directed verdict is appropriate will usually wait to see what the jury\u2019s verdict is. If it is favorable to the party the judge thinks should win, she can rely on that verdict. If the verdict is for the other party, he can grant the motion for judgment n.o.v. This is a safer way to proceed because if the judge is reversed on appeal, a new trial is not necessary. The jury\u2019s verdict always can be restored, whereas without a jury verdict (as happens when a directed verdict is granted before the case goes to the jury), the entire case must be presented to a new jury. <em class=\"im_emphasis\">Ferlito v. Johnson &amp; Johnson<\/em> (Section 3.9 \"Cases\") illustrates the judgment n.o.v. process in a case where the judge allowed the case to go to a jury that was overly sympathetic to the plaintiffs.\r\n\r\nRule 50(b) of the Federal Rules of Civil Procedure provides the authorization for federal judges making a judgment contrary to the judgment of the jury. Most states have a similar rule.\r\n\r\nRule 50(b) says,\r\n<blockquote>Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party\u2019s motion for a directed verdict.\u2026[A] new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.<\/blockquote>\r\n<div id=\"mayer_1.0-ch03_s04_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\r\n<h3 class=\"im_title\">Key Takeaway<\/h3>\r\nThe purpose of a trial judge is to ensure justice to all parties to the lawsuit. The judge presides, instructs the jury, and may limit who testifies and what they testify about what. In all of this, the judge will usually commit some errors; occasionally these will be the kinds of errors that seriously compromise a fair trial for both parties. Errors that do seriously compromise a fair trial for both parties are prejudicial, as opposed to harmless. The appeals court must decide whether any errors of the trial court judge are prejudicial or not.\r\n\r\nIf a judge directs a verdict, that ends the case for the party who hasn\u2019t asked for one; if a judge grants judgment n.o.v., that will take away a jury verdict that one side has worked very hard to get. Thus a judge must be careful not to unduly favor one side or the other, regardless of his or her sympathies.\r\n\r\n<\/div>\r\n<div class=\"bcc-box bcc-info\">\r\n<h3>Exercises<\/h3>\r\n<section id=\"self-check-questions\">\r\n<ol>\r\n \t<li>What if there was not a doctrine of res judicata? What would the legal system be like?<\/li>\r\n \t<li>Why do you think cross-examination is a \u201cright,\u201d as opposed to a \u201cgood thing\u201d? What kind of judicial system would not allow cross-examination of witnesses as a matter of right?<\/li>\r\n<\/ol>\r\n<\/section><\/div>\r\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\r\n<\/div>","rendered":"<div class=\"bcc-box bcc-highlight\">\n<h3>Learning Objectives<\/h3>\n<p>By the end of this section, you will be able to:<\/p>\n<ul id=\"mayer_1.0-ch52_s02_l01\" class=\"im_orderedlist\">\n<li>Understand how judges can push parties into pretrial settlement.<\/li>\n<li>Explain the meaning and use of directed verdicts.<\/li>\n<li>Distinguish a directed verdict from a judgment n.o.v. (\u201cnotwithstanding the verdict\u201d).<\/li>\n<\/ul>\n<\/div>\n<p>After considerable discovery, one of the parties may believe that there is no triable issue of law or fact for the court to consider and may file a motion with the court for summary judgment. Unless it is very clear, the judge will deny a summary judgment motion, because that ends the case at the trial level; it is a \u201cfinal order\u201d in the case that tells the plaintiff \u201cno\u201d and leaves no room to bring another lawsuit against the defendant for that particular set of facts (res judicata). If the plaintiff successfully appeals a summary judgment motion, the case will come back to the trial court.<\/p>\n<p>Prior to the trial, the judge may also convene the parties in an effort to investigate the possibilities of settlement. Usually, the judge will explore the strengths and weaknesses of each party\u2019s case with the attorneys. The parties may decide that it is more prudent or efficient to settle than to risk going to trial.<\/p>\n<div id=\"mayer_1.0-ch03_s04_s01\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Pretrial Conference<\/h2>\n<p>At various times during the discovery process, depending on the nature and complexity of the case, the court may hold a pretrial conference to clarify the issues and establish a timetable. The court may also hold a settlement conference to see if the parties can work out their differences and avoid trial altogether.<\/p>\n<p>Three methods of alternative dispute resolution are negotiation, mediation, and arbitration. Negotiation is a process in which parties attempt to settle their dispute without going to court, with or without attorneys representing them. In mediation, a neutral third party acts as a communicating agent between the parties to help them negotiate a settlement. A more formal method is arbitration in which an arbitrator (a neutral third party or panel of experts) hears the dispute and imposes a resolution on the parties.<\/p>\n<p>Once discovery is complete, the case moves on to trial if it has not been settled. Most cases are settled before this stage; perhaps 85 percent of all civil cases end before trial, and more than 90 percent of criminal prosecutions end with a guilty plea.<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch03_s04_s02\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Trial<\/h2>\n<p>At trial, the first order of business is to select a jury. (In a civil case of any consequence, either party can request one, based on the Sixth Amendment to the US Constitution.) The judge and sometimes the lawyers are permitted to question the jurors to be sure that they are unbiased. This questioning is known as the voir dire (pronounced vwahr-DEER). This is an important process, and a great deal of thought goes into selecting the jury, especially in high-profile cases. A jury panel can be as few as six persons, or as many as twelve, with alternates selected and sitting in court in case one of the jurors is unable to continue. In a long trial, having alternates is essential; even in shorter trials, most courts will have at least two alternate jurors.<\/p>\n<p>In both criminal and civil trials, each side has opportunities to challenge potential jurors for cause. For example, in the Robinsons\u2019 case against Audi, the attorneys representing Audi will want to know if any prospective jurors have ever owned an Audi, what their experience has been, and if they had a similar problem (or worse) with their Audi that was not resolved to their satisfaction. If so, the defense attorney could well believe that such a juror has a potential for a bias against her client. In that case, she could use a challenge for cause, explaining to the judge the basis for her challenge. The judge, at her discretion, could either accept the for-cause reason or reject it.<\/p>\n<p>Even if an attorney cannot articulate a for-cause reason acceptable to the judge, he may use one of several peremptory challenges that most states (and the federal system) allow. A trial attorney with many years of experience may have a sixth sense about a potential juror and, in consultation with the client, may decide to use a peremptory challenge to avoid having that juror on the panel.<\/p>\n<p>After the jury is sworn and seated, the plaintiff\u2019s lawyer makes an opening statement, laying out the nature of the plaintiff\u2019s claim, the facts of the case as the plaintiff sees them, and the evidence that the lawyer will present. The defendant\u2019s lawyer may also make an opening statement or may reserve his right to do so at the end of the plaintiff\u2019s case.<\/p>\n<p>The plaintiff\u2019s lawyer then calls witnesses and presents the physical evidence that is relevant to her proof. The direct testimony at trial is usually far from a smooth narration. The rules of evidence (that govern the kinds of testimony and documents that may be introduced at trial) and the question-and-answer format tend to make the presentation of evidence choppy and difficult to follow.<\/p>\n<p>Anyone who has watched an actual televised trial or a television melodrama featuring a trial scene will appreciate the nature of the trial itself: witnesses are asked questions about a number of issues that may or may not be related, the opposing lawyer will frequently object to the question or the form in which it is asked, and the jury may be sent from the room while the lawyers argue at the bench before the judge.<\/p>\n<p>After direct testimony of each witness is over, the opposing lawyer may conduct cross-examination. This is a crucial constitutional right; in criminal cases it is preserved in the Constitution\u2019s Sixth Amendment (the right to confront one\u2019s accusers in open court). The formal rules of direct testimony are then relaxed, and the cross-examiner may probe the witness more informally, asking questions that may not seem immediately relevant. This is when the opposing attorney may become harsh, casting doubt on a witness\u2019s credibility, trying to trip her up and show that the answers she gave are false or not to be trusted. This use of cross-examination, along with the requirement that the witness must respond to questions that are at all relevant to the questions raised by the case, distinguishes common-law courts from those of authoritarian regimes around the world.<\/p>\n<p>Following cross-examination, the plaintiff\u2019s lawyer may then question the witness again: this is called redirect examination and is used to demonstrate that the witness\u2019s original answers were accurate and to show that any implications otherwise, suggested by the cross-examiner, were unwarranted. The cross-examiner may then engage the witness in re-cross-examination, and so on. The process usually stops after cross-examination or redirect.<\/p>\n<p>During the trial, the judge\u2019s chief responsibility is to see that the trial is fair to both sides. One big piece of that responsibility is to rule on the admissibility of evidence. A judge may rule that a particular question is out of order\u2014that is, not relevant or appropriate\u2014or that a given document is irrelevant. Where the attorney is convinced that a particular witness, a particular question, or a particular document (or part thereof) is critical to her case, she may preserve an objection to the court\u2019s ruling by saying \u201cexception,\u201d in which case the court stenographer will note the exception; on appeal, the attorney may cite any number of exceptions as adding up to the lack of a fair trial for her client and may request a court of appeals to order a retrial.<\/p>\n<p>For the most part, courts of appeal will not reverse and remand for a new trial unless the trial court judge\u2019s errors are \u201cprejudicial,\u201d or \u201can abuse of discretion.\u201d In short, neither party is entitled to a perfect trial, but only to a fair trial, one in which the trial judge has made only \u201charmless errors\u201d and not prejudicial ones.<\/p>\n<p>At the end of the plaintiff\u2019s case, the defendant presents his case, following the same procedure just outlined. The plaintiff is then entitled to present rebuttal witnesses, if necessary, to deny or argue with the evidence the defendant has introduced. The defendant in turn may present \u201csurrebuttal\u201d witnesses.<\/p>\n<p>When all testimony has been introduced, either party may ask the judge for a <span class=\"im_margin_term\"><span class=\"im_glossterm\">directed verdict<\/span><\/span>\u2014a verdict decided by the judge without advice from the jury. This motion may be granted if the plaintiff has failed to introduce evidence that is legally sufficient to meet her burden of proof or if the defendant has failed to do the same on issues on which she has the burden of proof. (For example, the plaintiff alleges that the defendant owes him money and introduces a signed promissory note. The defendant cannot show that the note is invalid. The defendant must lose the case unless he can show that the debt has been paid or otherwise discharged.)<\/p>\n<p>The defendant can move for a directed verdict at the close of the plaintiff\u2019s case, but the judge will usually wait to hear the entire case until deciding whether to do so. Directed verdicts are not usually granted, since it is the jury\u2019s job to determine the facts in dispute.<\/p>\n<p>If the judge refuses to grant a directed verdict, each lawyer will then present a closing argument to the jury (or, if there is no jury, to the judge alone). The closing argument is used to tie up the loose ends, as the attorney tries to bring together various seemingly unrelated facts into a story that will make sense to the jury.<\/p>\n<p>After closing arguments, the judge will instruct the jury. The purpose of jury instruction is to explain to the jurors the meaning of the law as it relates to the issues they are considering and to tell the jurors what facts they must determine if they are to give a verdict for one party or the other. Each lawyer will have prepared a set of written instructions that she hopes the judge will give to the jury. These will be tailored to advance her client\u2019s case. Many a verdict has been overturned on appeal because a trial judge has wrongly instructed the jury. The judge will carefully determine which instructions to give and often will use a set of pattern instructions provided by the state bar association or the supreme court of the state. These pattern jury instructions are often safer because they are patterned after language that appellate courts have used previously, and appellate courts are less likely to find reversible error in the instructions.<\/p>\n<p>After all instructions are given, the jury will retire to a private room and discuss the case and the answers requested by the judge for as long as it takes to reach a unanimous verdict. Some minor cases do not require a unanimous verdict. If the jury cannot reach a decision, this is called a hung jury, and the case will have to be retried. When a jury does reach a verdict, it delivers it in court with both parties and their lawyers present. The jury is then discharged, and control over the case returns to the judge. (If there is no jury, the judge will usually announce in a written opinion his findings of fact and how the law applies to those facts. Juries just announce their verdicts and do not state their reasons for reaching them.)<\/p>\n<\/div>\n<div id=\"mayer_1.0-ch03_s04_s03\" class=\"im_section\">\n<h2 class=\"im_title im_editable im_block\">Posttrial Motions<\/h2>\n<p>The losing party is allowed to ask the judge for a new trial or for a judgment notwithstanding the verdict (often called a <span class=\"im_margin_term\"><span class=\"im_glossterm\">judgment n.o.v.<\/span><\/span>, from the Latin <em class=\"im_emphasis\">non obstante veredicto<\/em>). A judge who decides that a directed verdict is appropriate will usually wait to see what the jury\u2019s verdict is. If it is favorable to the party the judge thinks should win, she can rely on that verdict. If the verdict is for the other party, he can grant the motion for judgment n.o.v. This is a safer way to proceed because if the judge is reversed on appeal, a new trial is not necessary. The jury\u2019s verdict always can be restored, whereas without a jury verdict (as happens when a directed verdict is granted before the case goes to the jury), the entire case must be presented to a new jury. <em class=\"im_emphasis\">Ferlito v. Johnson &amp; Johnson<\/em> (Section 3.9 &#8220;Cases&#8221;) illustrates the judgment n.o.v. process in a case where the judge allowed the case to go to a jury that was overly sympathetic to the plaintiffs.<\/p>\n<p>Rule 50(b) of the Federal Rules of Civil Procedure provides the authorization for federal judges making a judgment contrary to the judgment of the jury. Most states have a similar rule.<\/p>\n<p>Rule 50(b) says,<\/p>\n<blockquote><p>Whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party\u2019s motion for a directed verdict.\u2026[A] new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.<\/p><\/blockquote>\n<div id=\"mayer_1.0-ch03_s04_s03_n01\" class=\"im_key_takeaways im_editable im_block textbox\">\n<h3 class=\"im_title\">Key Takeaway<\/h3>\n<p>The purpose of a trial judge is to ensure justice to all parties to the lawsuit. The judge presides, instructs the jury, and may limit who testifies and what they testify about what. In all of this, the judge will usually commit some errors; occasionally these will be the kinds of errors that seriously compromise a fair trial for both parties. Errors that do seriously compromise a fair trial for both parties are prejudicial, as opposed to harmless. The appeals court must decide whether any errors of the trial court judge are prejudicial or not.<\/p>\n<p>If a judge directs a verdict, that ends the case for the party who hasn\u2019t asked for one; if a judge grants judgment n.o.v., that will take away a jury verdict that one side has worked very hard to get. Thus a judge must be careful not to unduly favor one side or the other, regardless of his or her sympathies.<\/p>\n<\/div>\n<div class=\"bcc-box bcc-info\">\n<h3>Exercises<\/h3>\n<section id=\"self-check-questions\">\n<ol>\n<li>What if there was not a doctrine of res judicata? What would the legal system be like?<\/li>\n<li>Why do you think cross-examination is a \u201cright,\u201d as opposed to a \u201cgood thing\u201d? What kind of judicial system would not allow cross-examination of witnesses as a matter of right?<\/li>\n<\/ol>\n<\/section>\n<\/div>\n<div id=\"mayer_1.0-ch52_s02_s06_n02\" class=\"im_exercises im_editable im_block\"><\/div>\n<\/div>\n\n\t\t\t <section class=\"citations-section\" role=\"contentinfo\">\n\t\t\t <h3>Candela Citations<\/h3>\n\t\t\t\t\t <div>\n\t\t\t\t\t\t <div id=\"citation-list-37\">\n\t\t\t\t\t\t\t <div class=\"licensing\"><div class=\"license-attribution-dropdown-subheading\">CC licensed content, Shared previously<\/div><ul class=\"citation-list\"><li>Business and the Legal Environment. <strong>Authored by<\/strong>: Anonymous. <strong>Provided by<\/strong>: Anonymous. <strong>Located at<\/strong>: <a target=\"_blank\" href=\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\">http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/<\/a>. <strong>License<\/strong>: <em><a target=\"_blank\" rel=\"license\" href=\"https:\/\/creativecommons.org\/licenses\/by-nc-sa\/4.0\/\">CC BY-NC-SA: Attribution-NonCommercial-ShareAlike<\/a><\/em><\/li><\/ul><\/div>\n\t\t\t\t\t\t <\/div>\n\t\t\t\t\t <\/div>\n\t\t\t <\/section>","protected":false},"author":5797,"menu_order":15,"template":"","meta":{"_candela_citation":"[{\"type\":\"cc\",\"description\":\"Business and the Legal Environment\",\"author\":\"Anonymous\",\"organization\":\"Anonymous\",\"url\":\"http:\/\/2012books.lardbucket.org\/books\/business-and-the-legal-environment\/\",\"project\":\"\",\"license\":\"cc-by-nc-sa\",\"license_terms\":\"\"}]","CANDELA_OUTCOMES_GUID":"","pb_show_title":"on","pb_short_title":"","pb_subtitle":"","pb_authors":[],"pb_section_license":""},"chapter-type":[],"contributor":[],"license":[],"class_list":["post-37","chapter","type-chapter","status-publish","hentry"],"part":781,"_links":{"self":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/37","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters"}],"about":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/types\/chapter"}],"author":[{"embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/users\/5797"}],"version-history":[{"count":6,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/37\/revisions"}],"predecessor-version":[{"id":1407,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/37\/revisions\/1407"}],"part":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/parts\/781"}],"metadata":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapters\/37\/metadata\/"}],"wp:attachment":[{"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/media?parent=37"}],"wp:term":[{"taxonomy":"chapter-type","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/pressbooks\/v2\/chapter-type?post=37"},{"taxonomy":"contributor","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/contributor?post=37"},{"taxonomy":"license","embeddable":true,"href":"https:\/\/courses.lumenlearning.com\/clinton-buslegalenv\/wp-json\/wp\/v2\/license?post=37"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}