AAOS Bulletin - April, 2006

The legal concept of directed verdict

By Sidney W. Adler, JD

A civil trial is simply a means of resolving a disputed claim between two or more parties. “Directed verdict” is a procedural aspect of most jury trials. To understand the legal concept of a directed verdict, one must understand the mechanics of a jury trial.

The essential function of a jury is to determine whether the plaintiff has proved the claim against the defendant. The judge who presides over the case makes rulings on various issues of law during the trial. For example, the trial judge rules on whether or not an item is considered admissible as evidence and instructs the jury on the applicable law(s) by which the jury must decide the case.

However, just as the jury is not permitted to determine the applicable law or whether the law is just or appropriate, the judge does not decide which witnesses are telling the truth or what evidence to believe or disbelieve. That is the jury’s responsibility.

Making the case

In medical liability cases, the plaintiff has the burden of proof. The plaintiff is required to present his or her case first and must prove, to the jury’s satisfaction, that the claim has merit.

The evidence presented by both parties usually consists of physical evidence—such as medical records—and the testimony of witnesses, either in the courtroom or by deposition. Juries are also permitted to draw reasonable inferences from the evidence presented.

For example, if the jury finds that the defendant physician sent the plaintiff patient a letter recommending follow-up testing, the jury may reasonably infer that the letter was received by the plaintiff, even if the plaintiff testifies that the letter was not received. On the other hand, the jury may believe that the letter was never sent to the patient. Part of a jury’s essential function in evaluating the credibility of witnesses is deciding what evidence to believe or disbelieve.

To satisfy the burden of proof, the plaintiff must present sufficient evidence to satisfy each element of the claim against the defendant. In a medical liability case, the plaintiff would generally be required to prove: (1) a doctor-patient relationship existed between the plaintiff and the defendant; (2) the defendant’s care and treatment of the plaintiff breached the applicable standard of care, i.e., the defendant was negligent; and (3) as a result of the defendant’s negligence, the plaintiff sustained damages.

If the plaintiff fails to present sufficient evidence in support of any of these elements, the defendant would present a motion for directed verdict to the trial judge after all the plaintiff’s evidence has been presented.

Expert testimony

In medical liability cases, directed verdict issues often revolve around the sufficiency of expert testimony. Expert testimony is usually required to prove that the defendant breached the standard of care, and that such negligence made a difference in the patient’s medical outcome, because these issues are beyond the common knowledge of laypersons. Both issues are of equal importance because, even if a physician is found negligent, if the alleged negligence did not cause the patient any harm, the plaintiff loses.

If the evidence presented by the plaintiff is legally insufficient, the court would be justified in granting a directed verdict. By directing a verdict, the court determines that, as a matter of law, no reasonable jury could find for the plaintiff. In ruling on a motion for directed verdict, judges are not permitted to weigh the evidence or determine which witnesses are telling the truth. The judge’s function is only to decide matters of law. If the judge determines that there is sufficient evidence, he or she allows the trial to proceed and the defendant to present evidence, including expert testimony. After both sides have presented their cases, the outcome of the trial is decided by the jury.

A rare occurrence

Directed verdicts may occur when the plaintiff’s counsel is inexperienced or incompetent and makes strategic errors during the trial. However, directed verdicts are relatively rare occurrences.

A directed verdict takes the decision away from the jury. Courts are reluctant to do this because jury trials are constitutionally guaranteed in most jurisdictions. Unless the lack of sufficient evidence is obvious, most judges would allow the jury to decide the case.

Even in cases where the plaintiff’s evidence was arguably not sufficient, many judges would deny a motion for directed verdict. In most of those instances, the lack of evidence means that the jury will find for the defendant. If the jury decided in favor of the plaintiff, the judge could reverse the jury verdict and enter a finding for the defendant.

Directing a verdict for the defendant also could result in an appeal by the plaintiff. If the appeal reversed the judge’s decision granting a directed verdict, a new trial would be required. It is therefore more efficient to allow the jury to decide the case.

Sidney W. Adler, JD, is a partner in the Boston firm of Adler, Cohen, Harvey, Wakeman and Guekguezian.


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