The Trial Process

A trial is the ultimate culmination of a litigated case, and the product of the written interrogatories and depositions will be significant to the result. A judge or jury will decide whether a party wins or loses based on evidence developed during litigation.

The trial is the culmination of a litigated case. Most cases settle, however some cases are decided by trial.  There are two types of civil (non-criminal) trials—bench trials (decided by a judge) and jury trials. Whether a case is decided by a judge or a jury depends upon the nature of the controversy. If damages are being sought (as opposed to injunctive relief), the parties are entitled to a jury. Sometimes, however, the parties and their lawyers opt to have a judge decide the case even if damages are being asked for by one of the parties.

Conference with the Judge in Chambers
Whether the case is going to be decided by a jury or a judge, the first step in the trial process is a lawyers’ meeting with the judge. This is typically an informal meeting (not officially transcribed) in the judge’s office or chambers. The judge advises the lawyers about the courtroom rules. Although the lawyers will have filed trial briefs (a multi-page document that explains the party’s position in the case), the judge usually has additional questions.

Settlement discussions also occur in the judge’s chambers. Judges strive to have cases settled before trial, if possible, and so encourage settlement discussions. This is usually the last real opportunity to settle a case, and many cases are settled in the judge’s chambers just prior to the start of a trial.

Motions in Limine
If the case does not settle in chambers, and it is a jury trial, the judge proceeds to rule on various requests about evidence that the jury will be allowed to hear. These are called “motions in limine.” Sometimes the requests are routine, and the parties agree without the court ruling. Sometimes, however, the requests concerning evidence can be extremely important, and the success or failure of the case may ride on the judge’s decision.

Jury Selection
After ruling on the motions in limine, the judge will instruct the clerk to call for a jury panel. The panel typically consists of about 45 residents from the county in which the case is going to be tried. Lawyers receive basic information about each prospective juror, such as their city of residence, place of employment, job description, marital status, and spouse’s occupation, if applicable.

To learn more about the prospective jurors, the judge and attorneys ask them additional questions. While most people think that selecting a jury is to obtain 12 impartial jurors, that is not the case. Attorneys strive to select jurors who appear to support and are partial to their side of the case. They do that by determining what type of person would be most favorable to their position and then identifying favorable jurors during the interview process. Potential jurors who appear to have an unfavorable bias can be rejected with a “peremptory challenge.” Both sides have the same number of peremptory challenges, and the result often is the most impartial jury possible given the county’s demographics.

Opening Statement
After the jury is seated in the jury box, the judge invites the lawyers to make an opening statement or a discussion by the lawyer about what he or she thinks (or hopes) the evidence will be. Each lawyer describes the evidence that will best support his or her client’s position. The lawyer representing the plaintiff (the person who filed the lawsuit) goes first. It is our goal during the opening statement to leave the jury with a lasting impression that is favorable to our client. The stronger the impression we can leave, the better.

When the jury is seated and opening statements are finished, the evidentiary commences. The plaintiff, who has the burden of proving his or her case, begins first. The plaintiff’s lawyer will call witnesses to the witness stand that support the case. If a witness is not available during a party’s case, the judge will order that the witness “testify out of order.” Once the plaintiff has completed his or her case, the defendant’s attorney will call defense witnesses. 

If the witness is favorable to the lawyer’s client, the lawyer must ask “direct” or open-ended questions.  For instance the lawyer may ask the witness, “Please tell us how you are employed.” If the witness is not a favorable witness, the lawyer may “cross examine” the witness and ask “leading” questions, which are usually answered with a yes or now. A leading question is often phrased in the form, “Isn’t it true that…?”

Closing Argument
Once the evidence is complete, the lawyers deliver closing arguments to the jury. In this phase, the lawyers passionately describe the evidence that was presented and explain why the jury must find in their favor. There is an unusual wrinkle in closing arguments. Just as in all others phases of the case, the plaintiff attorney goes first and the defense attorney follows. However, when the defense attorney is done, the plaintiff’s attorney offers an additional closing argument. For defendants, this can be disconcerting, but for plaintiffs, this is a chance to tell their side of the story one last time.

Jury Instruction & Deliberation
When the presentation of evidence and arguments are complete, the judge then reads instructions to the jury that tell them what laws they must use to decide the case. Reading the “jury instructions” takes about an hour. Once the judge is done, the jury is escorted into a deliberation room. After some period of time the jury returns with its decision or verdict.

The verdict is the formal finding by the jury, which must be accepted by the trial judge to be final. In civil trials, first the jury finds the facts, as proved by the evidence, then it applies the law as instructed by the court, and finally it returns a verdict in one conclusion that settles the case. Such a verdict is reported as follows: “We the jury find the issues for the plaintiff (or defendant, as the case may be) and assess his damages at….”