Legal Commentary by Monte Vines

Anatomy of a Lawsuit Part 3–Trial

[Anatomy articles provide a basic overview of the primary aspects of a lawsuit]

The three main stages of a lawsuit are the pleadings, discovery and trial.  The trial stage is the most well-known—when the evidence is presented, the case is argued, and a judgment is entered.  Trials to a judge and jury are known as jury trials, while trials just to a judge are called bench trials.  In most civil cases the parties have a constitutional right to a jury trial, but some cases must be tried only to a judge.  Parties may waive their rights to have a jury decide the case and choose to try their case just to a judge.

In civil cases the plaintiff has the burden of proof and must convince the judge or jury of their case, usually to the standard of proof known as the preponderance of the evidence.  That standard is met if the judge or jury decides that the facts establishing the claim are more probably true than not true, even if they are only 51% convinced.

The trial will proceed according to a court order worked out between the judge and the lawyers in advance, known as the pretrial order.  It identifies the claims and defenses of the parties, establishes the issues to be determined at the trial, the witnesses and exhibits to be presented, and other aspects of the trial.  While a trial is a very important and visible part of a lawsuit, it is the end product of much work behind the scenes.

Opening Aspects of Trials

In a jury trial, the first step is to select the jury from the potential jurors called for service.  That process is called voir dire.  The potential jurors are questioned to determine any biases or prejudices and to give the parties information on which to exercise challenges.  Any potential juror can be challenged for cause if a reason to question their fitness to serve is established.  Then each side will usually excuse three potential jurors with peremptory challenges, for which no reason needs to be given.  Those remaining will be the jury.

The parties will then make opening statements to the judge or jury, outlining their case and what they intend to prove.  Because first impressions can make a big impact, opening statements are seen as very important in a trial.

The plaintiff presents its evidence first, what is known as plaintiff’s case-in-chief, and must establish a prima facia case, meaning that evidence has been presented of each necessary element of the claim.  If plaintiff fails to present evidence of some element of the claim, the judge can end the trial by entering judgment as a matter of law in favor of the defendant.

The Evidence

The evidence at the trial consists of the testimony of witnesses under penalty of perjury, exhibits, and other facts that the judge may recognize by judicial notice—matters of common knowledge or that are readily verifiable.  The parties also may stipulate to some facts, so that those facts would not need to be proven at trial.

Witness testimony is given as answers to questions posed by the lawyers.  Their initial testimony is given during direct examination by the lawyer who called that witness.  The opposing party’s lawyer then can cross-examine the witness regarding the matters testified to on direct.  There may also be redirect and recross examinations.

Most witnesses are fact witnesses, because they are there to testify about the facts of the case that they know directly from their own involvement.  Some cases also have expert witnesses—people whose special knowledge or experience enables them to testify about a subject that would help the judge or jury understand a complex matter, such as the standard of care in a field of medical practice and whether it has been met in a particular situation.  There may be expert witnesses on opposite sides of the case, and the judge or jury would need to decide which is more convincing.

There are many rules of evidence governing what evidence may be presented in a trial and how to present it.  The purpose for some of these rules is to avoid evidence that is less likely to be trustworthy.  So, for example, hearsay testimony is generally excluded, subject to many exceptions.  And there must be an adequate foundation laid for certain testimony to be allowed into evidence, such as that a witness was in a position to adequately observe and recall the subject of their testimony.  On the other hand, some rules restrict evidence that can be offered, even though it is likely to be trustworthy and relevant, such as the privileges against testimony about confidential communications between attorney and client, spouses, etc., in order to protect the willingness to communicate needed for those relationships.

In order to facilitate testimony being the actual recollections of the witnesses and to minimize the influence of the lawyer offering the witness on the testimony given, direct examination is to be conducted without leading questions, which are questions that suggest the answer desired.  But leading questions are allowed and are common in cross examination, to foster vigorous challenges to the testimony of adverse witnesses.

Lawyers may object to questions or answers that would violate a rule of evidence, and the judge then rules on the objection, either sustaining or overruling the objection. Objections must be timely made, or they are considered waived and testimony that would have been inadmissible is allowed to stand.  If inadmissible testimony was given before a lawyer could make the objection, the judge may instruct the jury to disregard that testimony—typically a challenge for a jury to do.

Exhibits are documents or other tangible things that relate to the case.  Exhibits are admitted into evidence when a witness establishes the authenticity of the document or photograph or other item and its relevance to the issues in the case.  Exhibits can be very valuable evidence, as they often are not as susceptible to bias or prejudice or faulty memory as the testimony of witnesses can be.

When the plaintiff has finished presenting its case-in-chief, the plaintiff rests its case.  If the evidence has established a prima facia case of the claim the defendant then presents its case.  This is done in the same way, through witnesses, exhibits and judicially-noticed facts.  The defendant then rests its case.

The plaintiff then has the opportunity to present rebuttal evidence, in order to controvert evidence presented by the defendant.  Then the defendant may present surrebuttal evidence, controverting the rebuttal evidence presented by the plaintiff.

End-of-Trial Matters

After the parties have presented their evidence, the lawyers make closing arguments to the judge or jury.  They review the evidence that was presented, argue how it tends to prove or disprove the elements of the plaintiff’s claim, and ask for a verdict in favor of their clients.

In a jury trial, the judge will then instruct the jury on what it needs to do to decide the case.  The jury instructions will cover both the procedure involved as well as the substantive law that the jury is to apply in its deliberations.  The jury instructions will have been the result of a conference between the judge and the lawyers to determine the specific instructions that should be given.  Judges rely heavily on pattern instructions developed over the years for many procedural and substantive points.  But in many cases, contentious arguments are involved in determining some of the jury instructions, and incorrect instructions can be the basis for an appeal.

In jury trials, the jury will then deliberate behind closed doors until they reach a verdict.  They may submit questions to the judge if they need guidance on the law, or they may ask to have some testimony read to them again.  In Kansas, a civil jury has twelve jurors and will need the agreement of at least ten jurors to reach a verdict, although the parties can agree to empanel a smaller jury or can agree that a verdict can be reached with less than ten of twelve in agreement.  When the jury reaches its verdict, it returns to the courtroom and the bailiff announces the verdict—a high point of the trial.  If the jury cannot agree on a verdict, the judge will eventually declare a mistrial and the parties will need to try the case again to a different jury.  In bench trials, the judge may “take the case under advisement” to review the evidence and the law involved in the case before reaching a verdict.

In jury trials, the judge will typically enter judgment in accordance with the verdict reached by the jury.  Some cases involve post-trial motions, where some aspect of the trial or the verdict is challenged.  In appropriate circumstances, the judge may enter a judgment as a matter of law that is different from or even contrary to the verdict reached by the jury, or may order a new trial.

Trials are Important, but Unusual

These are the basic aspects of a typical civil trial.  Of course there are many other possible aspects of trials, and many details not covered here.  But this overview may give you a better understanding of this most well-recognized part of a lawsuit.  And while a trial is what most people think of in regard to a lawsuit, a trial is actually an uncommon aspect of civil lawsuits—because most cases by far are settled or otherwise resolved before they get to trial.

While civil trials rarely provide the riveting drama portrayed in the movies or on television, some trials do involve deep emotions, dramatic moments, and very difficult decisions for the judge or jury.  A trial will usually determine matters that are very important to the parties involved, and may have long-lasting or even lifetime consequences.

A printable version of this article can be found at Anatomy of a Lawsuit.

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