The Role of Judge & Jury

1. The Role of Judge & Jury What reasonable jurors can’t believe

2. “Exclusive” Standard of Review: • When reviewing legal sufficiency, we consider only the evidence that tends to support the jury’s verdict, and disregard all contrary evidence • When reviewing factual sufficiency, we consider all the evidence, and set aside the verdict only if it is against the great weight and preponderance

3. “Inclusive” Standard of Review: • When reviewing legal sufficiency, we consider all of the evidence • crediting favorable evidence if reasonable jurors could • disregarding contrary evidence unless reasonable jurors could not City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)

4. JURORS CANNOT DISREGARD CONTEXTUAL EVIDENCE: • Defamation: the whole publication • New Times v. Isaacks, 146 S.W.3d 144 (Tex.2004) • Contracts: the whole contract. • Lipscomb v. Fuqua, 131 S.W. 1061 (Tex. 1910) • IIED: the whole relationship • Tiller v. McLure, 121 S.W.3d 709 (Tex.2003)

5. JURORS CANNOT DISREGARD COMPETENCY EVIDENCE : • Eyewitness: visible? • Tex. & P. Ry. Co. v. Ball, 75 S.W. 4 (1903) • Experts: qualified? • Bowles v. Bourdon, 219 S.W.2d 779 (1949)

6. JURORS CANNOT DISREGARD CIRCUMSTANTIAL EVIDENCE : • Fall or felony? • Marathon v. Pitzner, 106 S.W.3d 724 (Tex.2003) • Lightning bolt or telephone wire? • W. Telephone v. McCann, 99 S.W.2d 895 (Tex. 1937)

7. JURORS CANNOT DISREGARD CONCLUSIVE EVIDENCE : • Blood tests • Murdock v. Murdock, 811 S.W.2d 557 (Tex.1991) • Fog • Tex.& N.O. v. Compton, 136 S.W.2d 1113 (Tex. 1940) • Smoking guns • Prudential v. Krayer, 366 S.W.2d 779 (Tex.1963)

8. JURORS CANNOT DISREGARD CLEAR & CONVINCING EVIDENCE: • Defamation • Bentley v. Bunton, 94 S.W.3d 561 (Tex.2002) • Parental Termination • In re J.F.C., 96 S.W.3d 256 (Tex.2002) • Punitive Damages • S.W. Bell v. Garza, 164 S.W.3d 607 (Tex. 2004)

9. JURORS CANNOT DISREGARD CONSCIOUSNESS EVIDENCE : • Gross Negligence • Burk Royalty v. Walls, 616 S.W.2d 911 (Tex.1981) • Intentional Takings • City of Keller v. Wilson, 168 SW3d 802 (Tex. 2005)

10. Recent Examples of What Reasonable Jurors Can’t Believe

11. Recent Cases Kroger v. Suberu 2006 WL 1195331 (Tex. 2006) Case– malicious prosecution Evidence– P never used a shopping cart Verdict– for P: $79,000 Reversed– legally insufficient evidence D was malicious rather than mistaken

12. Recent Cases Minnesota Life v. Vasquez, 2006 WL 889724 (Tex. 2006) Case– deceptive insurance practice Evidence– Autopsy: seizure and fall Policy– accidental death but not disease Verdict– for P: $347,000 Reversed– Autopsy legally insufficient to show coverage was reasonably clear

13. Recent Cases Wal‑Mart Stores, Inc. v. Spates, 186 S.W.3d 566 (Tex. 2006) Case– slip-and-fall Evidence– six-pack ring directly behind store employee for 30‑45 seconds MSJ affirmed– too little time to conclude employee should have known of hazard

14. Recent Cases Dew v. Crown Derrick Erectors, 2006 WL 1792216 (Tex. 2006) Case– fall thru unguarded manhole Evidence– contractor roped off area, somebody removed the rope Verdict– for P: $14.5 million (20% Crown) Affirmed– legally insufficient evidence D absolved by new & independent cause

15. Some Evidence? P: I had the green light D: I had the green light Yes, of course Jury Decides Who to Credit

16. Some Evidence? P: [silent] D: [silent] No, of course not Directed verdict for D

17. Some Evidence? P: I had the green light. D: [silent] P verdict: Yes D verdict: Probably Clear, positive, direct, credible, consistent, & controvertible?

18. Some Evidence? P: [silent] D: I had the green light. P verdict:No Disbelief is not evidence

19. Some Evidence? P: I didn’t see the bus. D: 80% of the buses are ours. No. “[T]he plaintiff will lose; in fact, the case is unlikely to reach the jury.”Charles Nesson, The Evidence or the Event?, 98 Harv.L.Rev. 1357, 1378‑79 (1985) Gary Wells, Naked Statistical Evidence of Liability, 62 J. Pers. & Soc. Psychol. 739 (1992)

20. Are Suspicions Evidence? • City of Keller, 168 S.W.3d 802, 830 (Tex. 2005): [T]he Wilsons had to prove not that the City might have disbelieved the engineers' reports, but that it did. This requires evidence of “objective indicia of intent” showing the City knew identifiable harm was occurring or substantially certain to result. Jurors’ doubts about the engineers’ reports or the City's motives could not supply them with objective indicia that the City knew flooding would occur. Constitutional concerns about the roles of judge and jury do not allow either to make such evidence up.

21. Are Percentages evidence? P: “I am 80% sure the bus was Blue.” Yes.

22. Justice Robert Calvert: It is theoretically possible, and sometimes not far from actual fact, that five members of the Supreme Court will conclude that the evidence supporting a finding of a vital fact has no probative force, and … in effect, that • the trial judge who overruled an instructed verdict, • the twelve jurors who signed the verdict • the three justices of the Court of Civil Appeals • and four dissenting justices of the Supreme Court are not men of “reasonable minds.” “No Evidence” & “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361 (1960)

23. Justice Felix Frankfurter: Only an incompetent or a willful judge would take a case from the jury when the issue should be left to the jury. But… judges of competence and conscience have in the past, and will in the future, disagree whether proof in a case is sufficient to demand submission to the jury. The fact that [one] thinks there was enough to leave the case to the jury does not indicate that the other [is] unmindful of the jury's function.

24. Justice Felix Frankfurter: The easy but timid way out for a trial judge is to leave all cases tried to a jury for jury determination, but in so doing he fails in his duty to take a case from the jury when the evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge. Wilkerson v. McCarthy, 336 U.S. 53, 65 (1949) (concurring)