Judge and Jury Compared

Judge and Jury Compared

One appeal can send a party's facts through two different standards of review, depending on who was supposed to find them. Hersch v. United States shows both in a single opinion. After a crash, the plaintiffs sued the United States and an aircraft manufacturer. The cases were consolidated for trial, with the judge sitting as trier of fact on the claim against the government and a jury hearing the claims against the manufacturer.¹ When the plaintiffs finished presenting their evidence, the United States moved for an involuntary dismissal and the manufacturer moved for a directed verdict. The court granted both motions, and the Sixth Circuit upheld both, but it tested each ruling by a different standard.²

The claim against the government was tried to the judge, so Rule 52(a)(6) supplied the test. Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.³ The Sixth Circuit reviewed the evidence the plaintiffs presented. The trial judge had appeared impressed with the air-traffic controller's testimony, and the experts' testimony conflicted, so the judge had rejected it. Crediting one witness and rejecting conflicting experts is the kind of choice the rule protects. The finding was not clearly erroneous, so the dismissal stood.⁴

The claim against the manufacturer reached the Sixth Circuit in a different posture. The directed verdict removed the claim from the jury before it deliberated, so no jury had found anything for the court of appeals to defer to. Under the Rule 50 standard covered earlier, a judge deciding that motion does not weigh the evidence. The judge asks whether the proof, read in the nonmoving party's favor, leaves the jury anything to decide, and the court of appeals asks the same question again. The governing law required the plaintiffs to show a probability, not a possibility, that the alleged defects caused the crash. The court of appeals agreed with the trial judge that the plaintiffs' evidence did not show a probable cause, and it upheld the directed verdict.⁵

The two claims rested on different theories of liability, but the theories do not explain the different reviews. The fact-finder does. A judge who tries a claim must decide what the evidence shows, so weighing the witnesses is itself a finding, and the court of appeals tests that finding for clear error. A judge who directs a verdict decides no facts. That judge asks only whether the plaintiffs' proof could support a verdict, and the court of appeals asks it again. When a jury does return a verdict, the protection grows. The Seventh Amendment prohibits reexamination of the factual determinations juries make, while a judge's findings stay reviewable under Rule 52(a).⁶ Appellate courts therefore give a jury's findings even greater deference than a judge's, because the constitutional jury right shields jurors' factual determinations from review except to the extent the common law allowed.⁷ Review of a judge's fact-finding is somewhat more probing, though even there the court of appeals typically gives the trial court significant deference.⁸

The common mistake is to carry one inquiry into the other setting. A student who notes that the Sixth Circuit affirmed both rulings may ask whether the judge's account of the evidence was plausible on the directed verdict, but the judge made no finding on that claim and could weigh nothing. A student looking at the bench-tried claim may instead ask whether a reasonable fact-finder could have found for the plaintiffs. The judge was entitled to credit the controller over the experts, and the court of appeals respects that choice unless it is clearly erroneous.