MA Appellate Practice and Procedure Bulletin – January 2019

THE WEIGHT OF THE EVIDENCE: “SNOW STORMS IN MID-MAY”

The ability of a trial judge to review the “weight of the evidence” following a jury verdict was recognized early in the common law of Massachusetts and has long been integrated into both state and federal practice. See Hammond v. Wadhams, 5 Mass. 353 (1809) (noting the right of the trial court to order a new trial where either the “verdict is against the weight of the evidence,” or “when it is manifestly against the weight of the evidence”); Miller v. Baker, 20 Pic. 285 (1838)(noting adoption of nisi prius system in Massachusetts). At its core, is the integrity of the judicial process both in terms of deference and protection of the independent and full deliberative right of the jury and the discretion to prevent injustice. See Cassandra Robertson, Invisible Error, 50 Conn. L. Rev. 161 (2008).

Despite its vintage and essential safeguarding function, the trial judge’s power to order a new trial based on the weight of the evidence remains difficult to apply and inform. There remains a lack of articulated factors or substance to the discretionary inquiry which, in turn, mutes an understandable appellate standard of review. See W. Oliver Tripp Co. v. American Hoechst Co., 34 Mass. App. Ct. 744, 747 (1993)(as to abuse of discretion on rulings on new trial-“like snow storms in mid-May, such occasions may occur, but they induce considerable astonishment when they do”); Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960) (“What we have stated demonstrates that there is no consensus of opinion as to the exact standards to be used by a trial court in granting a new trial and that the criteria to be employed by an appellate tribunal charged with reviewing the trial judge’s decision in this respect are equally indefinite.”). It is one thing to afford “broad discretion” to the trial court as to new trial motions and declare that the occasions of any appellate finding of abuse to be akin to “snow storms in mid-May,” (see Oliver supra) it is another to fail to strive to identify functional guides for both trial and appellate discretion.

In Massachusetts, and as to civil cases, the present formulation was articulated in 1911 and again in 1948 in the oft cited cases of Scannell v. Boston Elevated Railroad Co., 208 Mass. 513 (1911) and Hartmann v. Boston Herald- Traveler Corp., 323 Mass. 56, 60 (1948). In Scannell, the Supreme Judicial Court set out the rule as follows:

It is the right and duty of a judge presiding at the trial of a civil case to set aside the verdict of the jury when in his judgment it is so greatly against the weight of the evidence as to induce in his mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice.

In Hartmann, the SJC noted the power to be “one of the most common and well-recognized in law for the setting aside of a verdict,” describing the applicable review as follows:

[W]hen asked to set aside a verdict as against the weight of the evidence the judge must necessarily consider the probative force of the evidence and not merely the presence or absence of any evidence upon the disputed point. In a limited sense he decides a question of fact. He is limited because he ought not to decide solely on his own opinion of the weight of the evidence as if he had heard the case without a jury. He may set aside the verdict only if he is satisfied that the jury have failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.

Massachusetts courts have referenced the standard as simply “against the weight of the evidence” or otherwise added and interchanged “great” weight, with “clear,” “markedly” or “manifest” with no meaningful distinction. Additional nuances include reference to the need for the jurors to have been “misled” and/or to have suffered a “misunderstanding [of] applicable law.” See, e.g., Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520-21 (1989); Riley v. Presnell, 409 Mass. 239, 248 (1991); Brown v. Metropolitan Transit Authority, 345 Mass. 363, 640 (1963); Scannell v. Boston Elevated Ry., 208 Mass. 513, 514 (1911); J. Edmund & Co. v. Rosen, 412 Mass. 572, 576 (1992); W. Oliver Tripp, 34 Mass. App. Ct. at 747-48; Meyer v. Wagner, 57 Mass. App. Ct. 494, 504-05 (2003).

The result is some looseness in nomenclature and conflation of what otherwise are separate notions removed from the essential inquiry. While the reference to either “markedly,” “great,” or “clear” weight of the evidence is not particularly problematic, the “bias, misapprehension, and prejudice” formulation can be as it is distinct from the assessment of the admissible evidence and its probative force. Any “bias” or prejudice” would be pertinent to the jury deliberative process and infection from extraneous or impermissible sources. While the obligation to protect the sanctity of jury deliberations is undeniable and well within the purview of the trial judge to remedy, it is separate and distinct from the actual evidence at trial or its weight.

The “failure to exercise an honest and reasonable judgment in accordance with the controlling principles of law” formulation hews more closely to trial evidence evaluation and inquiry including expressly stating the need to do so against the underlying governing law. Notably, there is no mention or need of the proponent to show any pernicious taint on the jury process or that the jury was somehow “misled.” It otherwise, however, provides no other guidance as to how the weight of the evidence assessment is made including determining how strongly the evidence must contradict the verdict or the “factors” of the discretion. What is or is not an “honest” judgment adds little assistance to defining the approach and discretion afforded or identifying the degree the trial judge has the discretion to “assess the sheer justice of the case under the evidence.” See Childress & Davis, 1 Federal Standards of Review, § § 509[1] (4th ed. 2010).

It appears that inclusion and reference to “bias, prejudice, or misapprehension” and/or lack “of an honest and reasonable judgment” is to identify the very high and significant degree of weightiness required to grant such a motion. For instance, if a verdict is against the weight of the evidence to the degree to be “manifest,” “clear,” or “great,” it could be argued that it suggests that the jury must have been misled, that it could not have rendered an honest judgment or given “careful consideration,” or that the verdict was the product of “bias, prejudice or misapprehension.” Yet such conjecture provides no useful barometer or scale as to degree of probative value. If the verdict as to any essential element is against the “manifest,” “great,” or “clear” weight of the evidence, it adds nothing to surmise that it thus correlates or is explained by unknown “bias,” “misapprehension,” or “prejudice.” The verdict is or is not against the weight of the evidence and is or is not consistent with controlling law regardless of the presence or absence of bias, misapprehension or prejudice. Similarly, if the jury was biased, prejudiced or misapprehended, it matters little as to the respective probative force of the evidence either for or against the verdict. The reference to bias, prejudice, being “misled,” misapprehension, and “honest judgment” are better understood to reflect other independent basis for a new trial. They should not be any additive aspect of the clear or great weight of the evidence inquiry. They certainly do little to aid or identify the applicable criteria for such an assessment.

The lack of informative criteria as to a motion for new trial premised on the weight of the evidence impacts and hampers the abuse of discretion standard of review applicable to any appeal. The review of the trial court’s “discretion” on appeal, in turn, has moved from the “no conscientious judge….” and “the failure to avoid idiosyncratic choice brought on by arbitrary determination, capricious disposition, or whimsical thinking” (Davis v. Boston Elev. Ry., 235 Mass. 482, 496 (1920)) to the now “clear error of judgment in weighing the factors relevant to the decision…such that the decision falls outside the range of reasonable alternatives.” L.L. v. Commonwealth, 470 Mass. 169, 185 (2014). Despite the improved definition, appellate review as to abuse of discretion suffers from a notable absence of identifiable “factors” and the limited range of alternatives (i.e., either grant or denial). As such, it is difficult to discern what any “snow storm in mid-May” looks like in this context.

Despite the difficulty, there are certain principles that may provide some measure of guidance and parameters to the discretion and which may be applicable across different cases.

• Practitioners at the trial level need to identify and focus for the trial judge the element or elements of the cause of action or actions addressed by the jury which findings are asserted to be against the weight of the evidence
• The inquiry requires application and correlation of the specific evidence to the instructions given to the jury which are the law of the case as well as a comparison of the nature, kind, and probative force of: (a) the admissible evidence that supports the disputed element or elements; and (b) the admissible evidence that is contrary to the finding as to the disputed element
• The level of complexity or simplicity of the legal and factual issues is a relevant consideration
• Critical is the probative force of the evidence and not merely the presence or absence of any evidence upon the disputed element. It is essential to identify and articulate with specificity why (or why not) contrary and specific evidence is of greater probative weight than any evidence that the jury could have relied upon for the finding and otherwise address the essential question of whether the verdict was one that reasonable persons could have (or could not have) rendered after receiving conflicting evidence
• Any and all argument must recognize that marshalling or identifying some or “even much” evidence to the contrary is not sufficient with the key being the probative, substantive force (or lack thereof) for and against the disputed element of the cause of action
• The inquiry allows for the trial court’s independent weighing of the credibility of the witnesses but with the need for articulating the basis for discounting or diminishing the credibility of any testimony on the disputed element. Neither the practitioner nor the court can simply reject evidence with no basis other than his or her own disagreement;
• The inquiry requires more than a substitution or casting of doubts about the evidence
• The trial court need not give the non-movant the benefit of all reasonable inferences unlike a motion for directed verdict or motion for judgment notwithstanding the verdict
• The proponent of a new trial motion should frame the argument with recognition that a trial court review as to the weight of the evidence improves decisional accuracy by ensuring that the evidence as a whole is not just legally sufficient, but is also strong enough to allow the factfinders to have confidence in the ultimate verdict-see Robertson, Invisible Error, supra
• Appellate review is for abuse of discretion with it imperative that the practitioner and court focus on the trial judge’s ruling in denying or granting the motion for new trial and how the judge applied the great or clear weight test. Appellate review is limited to the exercise of discretion by the trial court, not of the underlying question of whether the verdict is against the weight of the evidence
• Appellate review (and argument) requires a focus on the fundamental question of whether the trial judge abused his or her discretion in determining that the jury’s verdict was or was not against the clear or great weight of the evidence
• Assessment of the trial court’s discretion commences with ensuring that the correct standard was applied; that the inquiry as to the weight was correlated to the governing principles of law; and that analysis was had as to the evidence supporting and contrary to the disputed element. While reference to the clear weight of the evidence standard is imperative, mere rote recitation of the standard or discretion without fact-specific analysis is insufficient particularly as to any grants of motions for new trial
• Appellate review generally “allows the trial judge the benefit of first-hand weighing of the evidence, view of prejudice, credibility reevaluations, and the overall impression of justice;” see Childress & Davis, supra note 11 at § 510
• Appellate review, however, should also consider institutional competence in determining the level of deference to the trial court’s ruling, (e.g., marked deference to trial court’s assessment of credibility and overall probative impact and less to documentary evidence)
• Appreciate that success on appeal as to denials of motions for new trial based on the weight of the evidence is rather extraordinary with the unspoken combination of trial court discretion and presumption in favor of jury verdicts creating a formidable and understandable barrier. However, even in this instance, review cannot be meaningless and, unlike federal court practice, denials do not receive greater deference than review of grants of motions for new trial based on the weight of the evidence and
• Appreciate that while the trial court retains long-standing discretion to order a new trial where appropriate, that tradition does not include undermining the constitutional tradition of jury trials even where there may seemingly be only minimally conflicting evidence