Redirected Verdict

When a collapsing staircase left him with a broken leg, a Boston furniture mover sued the owner of the building for $35,000. After each side presented its case, the attorney for the building owner complained that the moving man had come nowhere near justifying his claim. Superior Court Judge Reuben Lurie agreed, and he upheld a motion asking for a directed verdict in favor of the defendant. Under Massachusetts law, there was only one formality left. The clerk intoned: "Mr. Foreman and members of the jury, hearken to your verdict. The jury finds for the defendant by order of the court. So say you, Mr. Foreman? So say you all, members of the jury?" To everyone's astonishment, Juror Claude Solana said, "No, not me!"

Dangerous Gamble. Jurors are not expected to buck directed verdicts. But in days gone by, they took more of a risk than did Solana. In 16th century England, the remote ancestor of today's directed verdict was called a writ of attaint; under it a judge could refuse to accept any jury verdict he did not like, no matter what the evidence. A new trial was then held, with a larger jury. If the new jury agreed with the judge, the original jurors could '"themselves be imprisoned and their wives and children thrust out of doors." That highhanded custom ended in 1670, when Edward Bushell and his fellow London jurors stubbornly refused to find Quakers William Penn and William Mead guilty of preaching to an unlawful assembly. The jurors were jailed, but at their subsequent trial they established the right to differ with the judge without incurring punishment.

By the time the newly independent U.S. began shaping its own law, another form of directed verdict, called a demurrer to the evidence, was in vogue. Before presenting his own evidence, a defendant could move that the plaintiff had failed to make a case. In some jurisdictions, it was a dangerous gamble. If the judge disagreed, the trial was over: the defendant lost without telling his story. Such a harsh penalty has now largely died out.

Yeasty Independence. Today's directed verdict is usually a response to a request from the defendant. Before heeding such a request, a judge will customarily consider all the evidence favorable to the plaintiff, disregard all evidence to the contrary, and decide that even under those circumstances, no reasonable man could find for the plaintiff. Even if the dispute is so onesided that it amounts to "the word of a busload of bishops against the word of the town drunk," says Harvard Law Professor Richard Field, the question must go to a jury.

But when a verdict is directed by a judge, what to do about a dissenting juror like Boston's Claude Solana? His totally unexpected protest tempted Judge Lurie to hold him in contempt of court. But as Thomas Lambert of the American Trial Lawyers Association notes, "the glory of the jury is its beautiful lawlessness." It represents "the yeasty independence of the average man over officialdom." Perhaps mindful of such thoughts, Judge Lurie decided to give Solana the benefit of his doubt. He declared a mistrial and will start all over again with a new jury.

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