Robbins: Explaining Directional Judgments | VailDaily.com

I was recently in court with a complex domestic litigation matter. My client was the “respondent” which in family law, although the stakes are different, is the rough equivalent of the “defendant” in a civil or criminal lawsuit. The respondent is the party against whom action is taken. On the other hand, the “petitioner” is the party who is the “moving party,” the person who started the action and is asking the court to do something—what lawyers refer to as asking the court for “help.”

To be clear, the word “domestic” used above has nothing to do with using the term in the context of “domestic” as opposed to “foreign”. In ordinary legal parlance, domestic refers instead to matters of home, hearth and family. It is the area of ​​law that deals with relationships within a family unit and the household. Domestic law includes things like divorce, child custody, child support, spousal support (what many states call “alimony”), and domestic abuse.

This particular case, as is far from unusual, involved a minor child.

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While the setting in this court was family law, the subject of this column—directed judgments—is not specific to domestic law or domestic subject matter. Directed judgments and, in the criminal context, directed verdicts apply more broadly, covering the entire spectrum of the law.

So… um… what exactly is a directed judgment?

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The concept behind a directed judgment is that there is no “there” there. Bear with me.

In each case, there is a burden of proof that must be met if the claimant (or petitioner) is to succeed. In criminal cases, the burden to be met is “beyond a reasonable doubt”, in other words, there is no reasonable explanation other than the accused having committed the crime.

Generally, in civil (ie non-criminal) matters, the burden to be met is that a “preponderance” of the evidence weighs in favor of the plaintiff (or petitioner). A “preponderance” can be considered more likely than not. In some circumstances, the burden to be met – as in my particular case – is “clear and convincing”, in other words, that the proposition the claimant wishes to make is more likely than not, that the proposition is very likely to be true .

If the task is not fulfilled, the claimant fails.

As I’ve noted before, in too many columns to count, there are rules for almost everything in law. There are rules of evidence, rules of professional conduct, rules of this and that, and of particular relevance here, there are rules of civil procedure. Motions for directed verdict are pursuant to Rule 50, which provides that “A party may move for a directed verdict at the close of an opponent’s evidence or at the close of all evidence.”

It usually goes something like the plaintiff puts it in their case. They trot out witnesses and exhibits and spin and argue their case. When the plaintiff rests his case, the defense attorney can stand up and, in a more or less stentorian voice, say something like, “Draft, the plaintiff (or in this case, the petitioner) has failed. Accordingly, Defendant moves for a directed verdict pursuant to Rule 50.” The moving party (the defendant here) will then count the many ways in which the plaintiff has failed to prove its case.

Generally, the judge will then allow the plaintiff’s attorney an opportunity to respond, to explain to the court why the directed verdict should fail.

All of the above leads me to “elements”.

Most of us without legal hats probably think of “elements” as little pieces of something that, stuck together, comprise something bigger. The elements of a house are the sticks and stones from which it is built. Or we think of the 100 or so substances marked on the periodic table that cannot be separated into simpler things by the wizardry of chemistry.

The legal elements are something like this; they are the essential elements that, taken together, make up a legal claim, and to prove a claim, each essential bit or element must be proved. Let’s think of it another way, if a claim is like a ladder, if you miss one rung to the top, your claim legal will collapse.

That being said, we now turn to the motions for directed verdicts.

The plaintiff suspended the case. They presented all their evidence. The defendant appeared and argued that, taken together, all the evidence presented by the plaintiff did not constitute a legal hill of beans. The plaintiff, the defendant contends, 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 proven.

Most of the time, at this point, the party moving for a directed verdict will detail to the court each rung of the claim ladder that was missed. They will detail the details – this has not been proven because of this and so on.

If the judge is convinced (directed verdicts are never presented or considered by a jury), the judge will grant the motion in favor of the moving party and, without further ado, the case will be closed.

But the kicker is this: every intention must be in favor of the non-moving party. If the court must err, it will more often than not err in favor of allowing the show to go on. If there is the slightest shred, speck, iota, or glimmer of evidence in favor of the non-moving party, the circus will continue and the litigation will continue.

While not an entirely uncommon sight in a courtroom, a directed verdict motion is tactically pursued only when there is a reasonable expectation of success. Rarer still is one granted – the moving party should simply fail on all counts. Yet it lives and breathes in our legal system and persists because, at least sometimes, the house of cards stacked by one or the other simply cannot withstand even the flimsiest judicial scrutiny.

In my particular case, although the judge was sympathetic and agreed that the petitioner’s case was weak, the judge ruled that there was enough “out there” there for the show to go on. As such, respondent presented its case, the purpose of which was to definitively strike down each, all, and every element of petitioner’s claims and to leave petitioner’s claims in ruins on the courtroom floor.

Rohn K. Robbins is an attorney licensed to the Colorado and California Bars, practicing in Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody and divorce; and civil litigation. Robbins can be reached at 970-926-4461 or [email protected]. His novels, “How to Raise a Shark (An Apocryphal Story),” “The Stone Keeper’s Daughter,” “Why They Go So Slow,” and “He Said They Came from Mars (Tales from the Edge of the Legal Universe)” and ‘Theory of Dancing Mice’ are currently available from quality booksellers.