Topic
Directed verdict
About: Directed verdict is a research topic. Over the lifetime, 13 publications have been published within this topic receiving 47 citations.
Papers
Journal Article•
TL;DR: The discussion draft of the Torts Restatement (Third) of Torts as mentioned in this paper has been widely criticised as a "breach" in the tort of negligence, that is, the provisions that explicate the substantive content of the negligence standard.
Abstract: INTRODUCTION This Article evaluates the provisions in the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") addressing the element of "breach" in the tort of negligence-that is, the provisions that explicate the substantive content of the negligence standard. In light of the continuing debate among tort theorists over the best understanding of negligence, the Discussion Draft's take on negligence is a matter of some importance within the legal academy. Whether it is a matter of much practical importance may be doubted. Under settled American practice, the jury applies the negligence standard to the facts it finds, and renders only a general verdict that does not explain or justify the outcome. Together with the rules effectively limiting judicial review of jury verdicts to cases of manifest error, these features of trial practice ensure that the operational meaning of negligence is largely determined by juries in particular cases, rather than by the doctrines stated in appellate decisions (and restated in Restatements of Torts). Even if these practices are misguided, it is clear that no Restatement could repudiate them without drastically departing from the American Law Institute's ("ALI") traditional position that Restatements are predominantly positive and only incrementally normative. On the other hand, the conception of negligence articulated in the Restatement (First) of Torts ("Restatement (First)") - which was carried over virtually unchanged into the Restatement (Second) of Torts ("Restatement (Second)"), and hence has defined the ALI's position for almost seventy years-has had an important influence on the black letter law, on appellate review of jury verdicts, and on directed verdict practice in the trial courts.1 Moreover, one might reasonably expect that courts will rely on the Discussion Drafts provisions in choosing jury instructions in negligence cases. This expectation, however, is undercut by the large gap between contemporary pattern jury instructions, which typically tell the jury to apply the reasonable person standard without explaining or defining it, and the Restatement and appellate cases, which typically interpret negligence in cost-benefit terms. Experience thus suggests that the Discussion Draft will have little impact on the negligence instructions juries receive. That may depend, though, on how aggressive the Discussion Draft is in recommending that courts instruct juries in accord with its formulations. In due course, I will explore what the Reporter, Gary Schwartz, has done on this score, and argue that it would be appropriate to do more. In very general terms, it is evident that the Discussion Draft-like its Restatement predecessors-endorses a version of cost-benefit balancing as a central part of determining negligence. Some torts scholars have argued that cost-benefit negligence is a distortion of the traditional (and, they argue, normatively superior) reasonable person standard.2 Were the Discussion Draft to adopt that view, it would jettison the Restatement (First)'s risk-utility test and simply rely on the reasonable person standard. Yet it would be an extraordinary development, to say the least, for the Discussion Draft to repudiate a major and at least moderately influential feature (risk-utility analysis) of the Restatements (First) and (Second). Beyond that, as Gary Schwartz ably shows in the Reporter's notes on Section 4 of the Discussion Draft, the Hand Formula balancing approach is recognized as authoritative by judicial opinions in a majority of states, by the leading torts treatises, and by most contemporary torts scholars. And while there is certainly still room for argument about how strongly the courts are committed to Hand Formula balancing, Schwartz rightly points out that there is no American jurisdiction "whose cases explicitly (or by clear implication) reject the balancing approach as an interpretation of the negligence standard. …
30 citations
Posted Content•
TL;DR: In the context of the 25th anniversary of the summary judgment trilogy, this paper discussed access to courts and juries before and after summary judgment and the effect of summary judgment on employment discrimination cases.
Abstract: In this keynote speech for the Seattle University School of Law Colloquium on the 25th Anniversary of the Summary Judgment Trilogy: Reflections on Summary Judgment, Professor Suja Thomas discusses access to courts and juries before and after the summary judgment trilogy. Following up on debate in the academic literature on the effect of the trilogy on summary judgment, Professor Thomas explores influences on the trilogy and influences of the trilogy outside of summary judgment. She first describes Supreme Court decisions on judgment notwithstanding the verdict, remittitur, and the directed verdict, which helped set the stage for the trilogy. She then explores access after the trilogy. Professor Thomas describes how access to courts and juries continued to decline through the Supreme Court’s decisions on arbitration and the motion to dismiss. Professor Thomas gives all of these procedures some context by showing their effect on one class of factually intensive cases — employment discrimination cases. She concludes by introducing the concept of “the Other Branch” and states that access to courts and juries can possibly increase if the jury is viewed in this manner.
7 citations
Posted Content•
TL;DR: In this article, the authors reveal that railroads revolutionized the law of jury control, leading to the rise of the directed verdict procedure and the related judgment notwithstanding the verdict, which allowed a judge to give a binding instruction to a jury, or to enter a judgment contrary to the jury's decision.
Abstract: Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes were the rise of directed verdict procedure and the related judgment notwithstanding the verdict. These mechanisms allowed a judge to give a binding instruction to a jury, or to enter a judgment contrary to the jury’s decision.This Study reveals that railroads revolutionized the law of jury control. Changes in directed verdict were part of a larger program of jury reform beginning in the mid-nineteenth century in England, the states, and the federal government. Because of growing numbers of complicated personal injury suits against railroads, and because of perceived jury bias in those cases, many judges sought to control juries more efficiently. Directed verdicts began to replace new trials. Opposition arose, but the overall trend was toward greater judicial control of juries. The striking changes in jury practice described in this Article suggest difficulties in maintaining a consistent jury trial right by constitutional requirement.
5 citations
TL;DR: In this paper, it is argued that it is useless and mischievous to have a distinct doctrine of res ipsa loquitur which has the effect merely of laying the foundation for a permissible inference of negligence, and that it best serves its excuse for being if it is treated as a presumption which shifts the burden of proof to the defendant.
Abstract: T HE law relating to res ipsa loquitur is replete with conflict, confusion and doubt. There is division of opinion as to the circumstances required for its application and still greater disagreement as to the effect to be given it. Does it merely lay the basis for a permissible inference of negligence by the jury or does it raise a presumption of negligence, and if and where it raises a presumption, what weight is to be given to it? It is not clear that where it is treated as a presumption, the court will direct a verdict for the plaintiff in the absence of rebuttal evidence by the defendant, nor is it at all clear what quantity of evidence will be required to prevent a directed verdict or how far the presumption survives the refusal to direct a verdict for the plaintiff, that is, what effect the jury shall give it. Then, too, there is much confusion with respect to the effect of pleading special acts of negligence. It is the belief of the writer that it is wholly useless and mischievous to have a distinct doctrine of res ipsa loquitur which has the effect merely of laying the foundation for a permissible inference of negligence, and that it best serves its excuse for being if it is treated as a presumption which shifts the burden of proof to the defendant. A brief statement of the law relating to res ipsa loquitur as found in the decisions will lay the foundation for our argument.
5 citations
1 Jan 1988
TL;DR: In this paper, the authors present an analysis of Matsushita's case on its facts and law, and the real meaning of Rule 56 and the "legislative intent" behind it.
Abstract: INTRODUCTION ........................................................... 96 I. THE Twuo OF CASES THAT CHANGED SoM OF THE LmGATON WORLD ....... 100 A. Matsushita v. Zenith .............................................. 100 B. Anderson v. Liberty Lobby ....................................... 103 C. Celotex v. Catrett ................................................. 105 D. The Trio as Trend ................................................. 106 II. CRACKS IN THE MIRROR: THE COURT'S ERRORS OF HISTORY, PRECEDENT, AND ANALYsis ............................................................... 108 A. Re-Examining Matsushita and Liberty Lobby ..................... 108 1. An Analysis of Matsushita on Its Facts and Law .............. 108 2. An Analysis of Liberty Lobby on Its Facts and Law .......... 114 a. Reviewing the Precedents Employed by the Liberty Lobby M ajority .................................................... 119 B. The "Real Meaning" of Rule 56 .................................. 129 1. The Text of the Rule .......................................... 129 2. The "Legislative Intent" Behind Rule 56 ..................... 133 a. The Summary Judgment Articles ........................... 135 b. Judge Clark's Second Circuit Opinions .................... 140 C. Prevailing Summary Judgment Practice and Scholarship Prior to Liberty Lobby ..................................................... 144 1. Prior Commentator Consensus and Precedent ................ 144 2. The Real Summary Judgment: A Rule with Multiple Personality .................................................... 154 3. The Real Directed Verdict: Another Case of Multiple Personality .................................................... 157 IH. THE FtruRu PERILs OF LiBERTY LOBBY AND MATSusHrTA ................... 159 A. A Change in Procedure as a Shift in the Relative Power of the Litigants ........................................................... 159
4 citations
Related Topics (5)
Performance Metrics
| Year | Papers |
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| 2015 | 1 |
| 2014 | 1 |
| 2013 | 1 |
| 2012 | 1 |
| 2011 | 1 |
| 2010 | 1 |