West Virginia Law Review

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It is elementary, of course, that, in an action at law, normally, the court tries the law and the jury tries the facts; and, in one respect, there can be no departure from this division of labor. For obvious reasons, no other functionary can assume the task of the court. But there are various procedural devices, some under the common law and some under statutes, by which the jury may be entirely eliminated as a trial factor. Its services may be dispensed with in the course of the trial, after it has developed that they are no longer needed, as by a demurrer to the evidence or a motion to direct a verdict; and even after verdict, under modern statutes, the court, substituting its own evaluation of the evidence for that of the jury, may render a judgment contrary to the verdict. In addition to these devices, which are called into operation after the trial has begun, on the theory that, due to a lack of evidence or to a great preponderance of the evidence, the facts, as a matter of law, could properly and legally be decided only one way, and therefore there is no function which a jury could legally perform, there are still other devices by which a jury may be dispensed with before the trial begins. These will constitute the theme of this discussion, with emphasis on the West Virginia law.



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