Some Practical Rules for JAML Analysis

Basic Principles

• If there is no direct or indirect evidence supporting an element, the jury must conclude that the element has not been established.

• If there is conflicting direct evidence regarding an element, jury gets to resolve the issue.

• Unless the other rules dictate a different result, if direct evidence and indirect evidence conflict, the jury gets to resolve the issue.

“Evidence” That Does Not Count

• The jury must disregard direct evidence• From a witness who did not have

an opportunity to observe, or• That is physically impossible

• Generally, the jury must disregard a non-expert witness’s conclusions (inferences from observations).

Evidence That Must Be Believed

• Usually, a jury has the right to disbelieve direct evidence even without contradictory evidence. However . . .

• The jury must believe direct evidence that is• unimpeached and • uncontradicted and • from a • disinterested witness or • a source that cannot reasonably

be doubted

Inferences That May Not Be Drawn

• If there is evidence of facts from which an element could be inferred (rather than direct evidence of the element), the jury decides • whether to believe the facts &• Whether to draw the inference

• Unless no reasonable jury :• could infer the element from the

facts (under the “more likely than not” standard)

Dogs That Do Not Bark

• If the “burdened party” could produce evidence on a particular factual issue and does not do so, it may change the rules as follows:

• It may cause the judge to decide that the jury has to believe the other side’s direct evidence • even though that evidence has

been impeached or comes from an interested party.

• If the “burdened party” could produce evidence on a particular factual issue and does not do so, it may change the rules as follows:

• It may cause the judge to decide that the jury cannot draw a particular inference: • even though that inference would

otherwise be reasonable.

Some Procedural Questions

•When can one file a JAML motion?•When must one file a JAML motion if one wants to file a JNOV (deferred JAML)?• Why?

•Why is it important to file a JNOV?