genesis of the incident. In the lockup he says that Pence told him to face the wall which Cole disregarded. Cole asked permission to lie down. Pence said he ran "this" and then asked Cole if he heard about O.J. Cole said "Fuck you and O.J." Pence said "What?" Cole said "You heard what I said." Pence said, "I bet if I turn you around, you won't say it again." Then Pence punched Cole in the eye.
This case forces attention to the relationship of two sorts of motions and how they are to be decided. One is the ruling on a Rule 50 motion for judgment as a matter of law (formerly called a motion for directed verdict) and the other is a ruling on a motion for summary judgment under Rule 56. Rule 56 motions are to be granted when there is no material dispute of fact and the movant is entitled to judgment as a matter of law. Rule 56 incorporates the standard of Rule 50. One cannot get summary judgment if one is not entitled to judgment as a matter of law. One is entitled to judgment as a matter of law when there is no legally sufficient evidentiary basis for a reasonable jury to find for the party against whom the motion is made.
If a case were tried to the jury in the same way it is tried on summary judgment, that is, by presenting deposition transcripts and exhibits, then the decision on the motion for judgment as a matter of law would be made in exactly the same way it is made on summary judgment. But cases are rarely, if ever, tried to a jury on papers and nothing more. The judge who is asked to grant judgment as a matter of law will have seen and heard the witnesses testify. Does this make a difference? In this case, it ought to.
Cole is an erratic witness and likely to do himself little good at trial, but he does expressly testify, at times, to the occurrence of acts that would render Pence liable for a denial of his civil rights. Looking only at the papers Cole says he was struck without adequate cause by a deputy sheriff. He may not remember the circumstances very well, even he concedes. Consistency in recounting events is not his strong suit. He was clearly evasive on his prior criminal history. Yet, in the end, there is his sworn assertion printed in black and white that Pence punched him in the eye and injured him and this is enough to avoid summary judgment. On the other hand, a witness like Cole, may worsen or improve his case by the manner of his testifying.
In my view, it is here that the application of Rule 50 differs from that of Rule 56. The court must deny summary judgment if the papers, generously read for the non-movant, establish some basis on which judgment could be entered for the non-movant. In contrast, it has been observed that a directed verdict motion is typically made after the witnesses testify and that the court can take account of the possibility that a witness either could not be believed or disbelieved by the jury. 10 Wright, Miller & Kane, Federal Practice and Procedure § 2713.1 (1983); see generally Futrell v. J.I. Case, 38 F.3d 342, 346 (7th Cir. 1994). I agree.
To be sure the range of a judge's discretion in taking a case from a jury is circumscribed at all stages, but a judge hearing a Rule 50 motion has more to consider than the judge would have on summary judgment motion, and the law allows the judge to take this extra data into account. This matters in this case because the sole ground for summary judgment is the apparently equivocal testimony of Cole. There is no argument here that other evidence overwhelms the evidence that Cole presents such as a videotape record of events in the lockup, the absence of medical corroboration, the testimony of several disinterested witnesses. I am not asked to weigh Cole's testimony against anything else, I am asked to judge it standing alone. A case like this one may not survive a motion at the end of trial, it does survive the motion for summary judgment.
James B. Zagel
United States District Judge