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I was recently in court with a complex domestic litigation matter. My client was the “respondent” which, in family law matters, although the stakes are different, is the rough equivalent of being the “defendant” in a civil or criminal litigation matter. The respondent is the party against whom an action is filed. Conversely, the “petitioner” is the party who is the “moving” party, the person who has commenced the action and is asking the court to do something — what lawyers refer to as asking the court for “relief.”

To be clear, the word “domestic” used above, has nothing to do with the employment of the term in the context of “domestic” as opposed to “foreign.” In common parlance in the law, domestic instead refers to matters of home, hearth, and family. It is the area of law that deals with relationships within a family unit and household. Domestic law includes things like divorce, child custody, child support, spousal maintenance (what many states call “alimony”), and domestic abuse.

This particular case, as is far from unusual, involved a minor child.

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While the setting in this instance was family law, the subject of this column — directed judgments — is not specific to domestic law or domestic matters. Directed judgments, and in the criminal setting, directed verdicts, apply more broadly, spanning the full spectrum of the law.

So … um … what exactly is a directed judgment?

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The concept behind a directed judgment is that there is no “there” there. Bear with me.

In every case, there is a burden of proof to be overcome if the plaintiff (or petitioner) is to be successful. In criminal cases, the burden to be overcome is “beyond a reasonable doubt,” in other words, there is no reasonable explanation other than the accused committed the offense. 

Generally, in civil (that is non-criminal) matters, the burden to be surmounted is that a “preponderance” of the evidence weighs in the plaintiff’s (or petitioner’s) favor.  A “preponderance” may be thought of as more likely than not. In some circumstances, the burden to be overcome — as in my particular case — is “clear and convincing,” in other words, that the proposition the plaintiff wishes to advance is substantially more likely than not, that the proposition is highly likely to be true.

If the burden is not met, the plaintiff fails.

As I have previously noted in too many columns to count, there are rules for nearly everything in law. There are rules of evidence, rules of professional conduct, rules for this and that, and of particular relevance here, there are rules of civil procedure. Motions for directed judgment live under Rule 50 which provides that, “A party may move for a directed judgment at the close of the evidence offered by an opponent or at the close of all the evidence.”

Usually, it goes something like this the plaintiff puts on their case. They trot out witnesses and exhibits and spin and argue in their favor. When the plaintiff rests their case, counsel for the defense may stand up and, in a more or less stentorian voice, say something like, “Your Honor, the plaintiff (or in this case, the petitioner) has failed to meet his burden. Accordingly, defendant moves for a directed judgment pursuant to Rule 50.” The moving party (the defendant here) will then count the many ways the plaintiff has failed to prove his or her case.

Generally, the judge will then permit the plaintiff’s counsel an opportunity to reply, to detail to the court why the motion for directed judgment should fail.

All the foregoing brings me to “elements.”

Most of us without legal hats on likely think of “elements” as little bits of something that, when stuck together, comprise something bigger. Elements of a home are the sticks and stones of which it is constructed. Or else we think of the 100 or so substances hallmarked in the periodic table that cannot be separated into simpler stuff through the wizardry of chemistry.

Legal elements are something like that; they are the essential bits that, when taken together, make up a legal claim and, to prove a claim, each essential bit or element must be proved. To think of it another way, if a claim is like a ladder, if you miss a single rung to get to the top, your legal claim will tumble.

That said, back now to motions for directed judgments.

The plaintiff has rested their case. They have presented all their evidence. The defendant has popped up and declaimed that, taken together, all the evidence presented by the plaintiff does not amount to a legal hill of beans. The plaintiff, the defendant advances, has simply failed — taken in the light most favorable to the plaintiff — to prove a case. The elements of the claim or claims have not been proved.

Most times at this point the party moving for the directed judgment will detail to the court each rung of the ladder of the claim that has been missed. They will detail the specifics — this was not proved because of that and so on.

If the judge is persuaded (directed verdicts are never presented to or considered by a jury), the judge will grant the motion in favor of the moving party and, without further falderal, the case will be concluded.

The kicker though is this: every intendment must be in favor of the non-moving party. If the court must err, it will most times err in favor of allowing the show to go on. If there is the tiniest bit, mote, iota, or scintilla of evidence in the non-moving party’s favor, the circus will continue and the highwire act of litigation will go on.

Although not a totally rare sighting in a courtroom, a motion for directed judgment is deployed tactically, only when there is a reasonable expectation of success. Rarer still is one granted — the moving party would simply have to fail in all regards. Nonetheless it lives and breathes in our system of law and persists because, at times at least, the house of cards stacked up by one party or the other can simply not stand up to even the feeblest judicial scrutiny.

In my particular case, although the judge was sympathetic and agreed that the petitioner’s case was feeble, the judge ruled that there was just enough “there” there for the show to go on. As such, the respondent presented his case, the purpose of which was to definitively shoot down each, all, and every element of the Petitioner’s claims and to leave the petitioner’s assertions rubbled on the courtroom floor.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow” and “He Said They Came From Mars (stories from the edge of the legal universe)” and “The Theory of Dancing Mice” are currently available at fine booksellers.