Robbins: What is a directed verdict? | VailDaily.com
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Robbins: What is a directed verdict?

Yeah, it’s sorta like that… only different.

Last week I wrote about summary judgment and defined it as a big “so what?” What I said more specifically was that summary judgment is a procedure by which civil litigation may be disposed of promptly and expeditiously without the need for trial. It is used when there is no dispute as to the material facts of the case and a party is entitled to judgment as a matter of law.

I explained that there are only two essential ingredients in a lawsuit: facts and law and, if there was no dispute as to the material facts and those facts didn’t stack up to a hill of beans, then as a matter of law, on a motion for summary judgment, the case could be dismissed without a trial. The judge can simply say, “There’s not enough here to waste everybody’s time.”



What I didn’t say is that summary judgment is pretty rare, not as rare as Diquis Spheres; maybe more like a triceratops fossil. One stumbles upon one now and then but, all in all, judges prefer to give someone their day in court even if there ain’t much “there” there.

Overall, even though it can be frustrating to a lawyer and her client when the spaghetti strands of a lawsuit are being flung against the wall of law to see what might stick, it’s probably a good thing. As a general rule, we probably don’t want judges summarily dismissing matters without giving the allegedly aggrieved party a chance to air his legal gripes.

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The above under our belts, what is a directed verdict and how is it sort of the same and sort of different?

First, the concept is essentially the same; there is no “there” there. How it’s different though is how and when a motion for a directed verdict is deployed.

As I have previously noted in too many columns to count, there are rules for nearly everything in law. There are rules of evidence, rules of professional conduct, rules for this and that, and of particular relevance here, there are rules of civil procedure. Motions for directed verdicts live under Rule 50, which provides that, “A party may move for a directed verdict at the close of the evidence offered by an opponent or at the close of all the evidence.”

Usually, it goes something like this: the plaintiff puts on his or her case. He or she trots out her witnesses and exhibits and spins and argues in their favor. When the plaintiff rests his or her case, counsel for the defense may stand up and, in a more or less stentorian tone, say something like, “Your Honor, defendant moves for a directed verdict pursuant to Rule 50.” The moving party (the defendant here) will then count the many ways the plaintiff has failed to prove his or her case.

Which brings me to “elements.”

Most of us without legal hats on likely think of “elements” as little bits of something that, when stuck together, make up something bigger. Elements of a home are the sticks and stones of which it is constructed. Or else we think of the 100 or so substances that cannot be separated into simpler stuff through the wizardry of chemistry.

Legal elements are something like that; they are the essential bits that, when taken together, make up a legal claim and, in order to prove a claim, each essential bit or element must be proved. To think of it another way, if a claim is like a ladder, if you miss a single rung to get to the top, your legal claim will tumble.

That said, back now to motions for directed verdicts.

The plaintiff has rested his or her case. He or she has presented all his or her evidence. The defendant has popped up and declaimed that, taken together, all the evidence presented by the plaintiff does not amount to a legal hill of beans. The plaintiff, the defendant advances, has simply failed — taken in the light most favorable to the plaintiff — to prove a case. The elements of the claim or claims have not been proved.

Most times at this point the party moving for the directed verdict will detail to the court each rung of the ladder of the claim that has been missed. He or she will detail the specifics; this was not proved because of that, and so on.

If the judge is persuaded (directed verdicts are never presented to or considered by a jury), she or he will grant the motion in favor of the moving party and, without further falderal, the case will be concluded.

The kicker though is this: Every intendment must be in favor of the non-moving party. If the court must err, it will most times err in favor of allowing the show to go on. If there is the tiniest bit, mote, iota or scintilla of evidence in the non-moving party’s favor, the circus will continue and the high-wire act of litigation will go on.

Like motions for summary judgment, although deeper into the jungle of the legal proceedings, motions for summary judgment are sort of like a legal machete to hack through the tangled flora of the law when there is no legal substance to a lawsuit. Both are intended as devices to save time and treasure when the facts are lacking to prove the law that would support a party’s legal grievance.

Although not a totally rare sighting in a courtroom, a motion for directed verdict is deployed tactically, only when there is a reasonable expectation of success. Rarer still is one granted — the non-moving party would simply have to fail in all regards. Nonetheless, it lives and breathes in our system of law and persists because, at times at least, the house of cards stacked up by one party or the other can simply not stand up to even the feeblest judicial scrutiny.


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