Section 8.4 Directed Verdicts

• Library: Civil Trial Practice 2015 Supp

B. (§8.4) Directed Verdicts

A problem that can plague a plaintiff, and one that a defendant should be ever alert to, is the devastating tactic of a directed verdict at the end of an opening statement. But a recent case confirms that courts are becoming much more remiss with respect to the affirmation of a directed verdict following opening statement. In Giles v. American Family Life Insurance Co.,987 S.W.2d 490, 492–93 (Mo. App. W.D. 1999), the Western District outlines in great detail the very limited circumstances

under which a granting of a directed verdict after opening statement will be affirmed. There are only two situations when it is warranted:

1. When counsel makes an admission that affirmatively demonstrates as a matter of law that the plaintiff has no cause of action or is not entitled to recover

2. When the facts recited in the opening statement, if proved, do not, as a matter of law, constitute enough to go to the jury

See also Zabol v. Lasky,498 S.W.2d 550, 553 (Mo. 1973); Swindler v. Butler Mfg. Co., 426 S.W.2d 78, 81–82 (Mo. 1968); Hays v. Mo. Pac. R.R. Co., 304 S.W.2d 800, 804 (Mo. 1957); Natoli v. Johnson, 490 S.W.2d 275, 277 (Mo. App. E.D. 1973).

But it is only appropriate to direct a verdict in the second situation when it affirmatively appears that the whole of the plaintiff’s case has been fully set forth in the opening statement and that proof of the recited facts, together with all reasonable inferences in the plaintiff’s favor, would not result in a submissible case. Giles, 987 S.W.2d at 493. See alsoDotson v. Hammerman, 932 S.W.2d 880, 883 (Mo. App. E.D. 1996).

Turning this abstract statement around and looking at it from the opposite direction, it means that the sufficiency of the opening statement will be reviewed broadly because:

“[C]ourts should be reluctant to direct a verdict at the close of plaintiff’s opening statement.” To do so is “highly unusual and rarely justified.” This is because the opening statement is merely an outline, not a detailed statement, of the anticipated proof. Counsel is neither expected nor required to recite every detail of evidence to be offered. . . . Counsel is permitted great latitude in making an opening statement, and this latitude extends to what is not said as well as to what is said. Thus, the opening statement is not required to contain all or necessarily even a major part of a party’s case.

Giles, 987 S.W.2d at 493 (citations omitted).

As Giles indicates, direction of a verdict at...