[wd_asp id=1]
In this lesson, you will learn how to decide between a jury and a bench (judge) trial, and the burden of proof during the trial process. You will also learn about the stages of trial and how the preservation of error assists you in a potential appeal.
Things to know about the Trial stage
- What happens at trial?
- Burden of proof
- Alternatives to trial
- Judge or jury?
- Preservation of error
- Stages of a trial
Transcript
At this point, at least one plaintiff and one defendant is still standing. Discovery has ended, pleadings are complete, yet there are still issues in dispute. Challenges include whether to choose a jury trial, whether to consider alternatives to trial, how and when to present evidence (especially if you have the burden of proof), and preservation of error.
Everything up to now comes to this point. A trial. A trial is an attempt to settle a dispute by bringing two parties together to present evidence in court. That evidence is presented in two main ways – by witness testimony and by submission of certain documents or items to the record.
In a trial, the plaintiff is the first to present evidence because he or she has the burden of proof. The burden of proof is an obligation to prove by a preponderance of the evidence that each element of a claim exists. Once the plaintiff has met his burden of proof, the burden switches to the defendant. The defendant has the burden of proof for his or her counterclaim.
You don\’t always have to go to trial. You can settle out of court through mediation, arbitration, or in a worst case scenario, a street fight.
If you decide to go to trial, determine if you\’d be better off with a judge or a jury. In some instances, there is no right to a jury trial. In others, the parties can decide whether to use a jury as the trier of fact, or have a bench trial in which a judge presides.
Preservation of error is a tricky concept. By the time you learn about it, which is usually at the trial stage, it\’s almost too late to preserve issues. Preservation of error is saving or keeping issues alive so that they are available for appeal. That is, the issue must be raised first before a trial judge before it can be appealed. Issues are preserved through objections, affidavits, pleadings, and motions with documentation and proof.
Let\’s turn now to trial proceedings to give context to some of the terms you just learned. A trial starts with a pre-trial hearing and moves on to a jury trial, if there is one: opening statements, the presentation of evidence, closing statements, a verdict, and a judgment.