Re: Another GA lawsuite

"Larry Smith" <[EMAIL PROTECTED]> wrote in message news:<[EMAIL PROTECTED]>...
...
> >> Usually judges let even flimsy cases go to the jury but if the plaintiff is
> playing with 33% of the marbles and the defendant has 67%, the judge will
> step in and dismiss sooner or later.   That's my experience, even though the
> judge waits until ALL the evidence is in, or even until after a verdict for
> the plaintiff.
> 
    As a practicing plaintiff's lawyer, I appreciate your "defense" of
the plaintiff's burden of proof.  However, to be fair, in real life
the judges are loath to dismiss a case once the trial begins.  Even if
the plaintiff has 33% of the marbles and the defendant has 67%, the
judge will (in fact, should) let the case go to the jury.  That is why
we try cases to juries, rather than just judges.  Although the judge
can reject a jury's verdict, it is EXTREMELY rare,at least on
liability.  Although it happens, it is virtually anecdotal.


> The rule, at the end of the plaintiff's evidence and upon motion to dismiss
> by the defendant, is that if the plaintiff has failed to show evidence of
> each of the elements of his case, he is subject to dismissal. 

    If this were the case, it would already have been dismissed at the
summary judgement stage (ie, "thrown out of court").

 The court, if it finds by considering the evidence in the light most
favorable to the plaintiff that the plaintiff has failed to establish
he is entitled to relief, may enter an order of dismissal against the
plaintiff.
So let's assume that each of the plaintiff's witnesses testifies that
X
> could have occurred or might have occurred, instead of saying that it in
> fact DID occur, you won't get THAT to the jury.

    I agree that the plaintiff's witnesses can't win the day by saying
that it "could have" or "might have" occured this way.  However, they
need only say that it "more probably than not" happened this way. 
They do not need to say that it "did" happen this way.
> 
>  I know that some criminal cases have to meet this
> > test in preliminary hearings, but that makes sense, as the burden of proof
> > in the case is much higher ie. beyond a reasonable doubt. I thought you
> > could only get a civil case struck out (and thereby prevent it coming
>  before
> > the jury) if you could show that the case has no chance of succeeding even
> > if all the facts fall so as to favor the plaintiff?
> 
> The point is that a plaintiff must affirmatively produce evidence to support
> his allegations sounding in tort against the FAA by competent evidence.
> When a judge dismisses at the end of the plaintiff's evidence, and he does
> it quite often in my neck of the woods, it's not only because the
> plaintiff's case has suffered a fatal flaw in an element of proof but also
> because his evidence preponderates against a verdict any jury might award
> him.
> 
    I agree 100%.

> There are a whole battery of motions a plaintiff must withstand before he
> collects, and his case had better be better than "might have occurred" or he
> ain't going to collect.   This law isn't so much written in the books as it
> is in the history of lawyering.

    Again, I agree 100%.
> 
> >I'm not a lawyer,
> I'm not either.   I quit practicing some time ago.   But I tried quite a few
> jury cases in civil and criminal courts, and it's not like rolling dice or
> showing that a state of facts may have existed.
> 
>  so I
> > could easily be 100% wrong here, but I'd welcome some clarification so I
> > might better understand the procedures involved.
> I believe you have a good grasp of what it takes to get past an order of
> dismissal and get the case to the jury.   Plus you have a good grasp of the
> difference in the burden of proof in a civil case and a criminal case.
> > --
> > Mike Granby, PP-ASEL,IA
> > Warrior N44578
> > http://www.mikeg.net/plane
> >
> >