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Things to know about the Trial stage
- Trial
- Burden of proof
- Alternatives to trial
- Judge or jury?
- Preservation of error
- Stages of a trial
Starting the trial process
- Pre-trial
- Jury selection (voir dire)
- Objectives for jury selection
- Opening statements
Presentation of evidence
- Evidence
- Plaintiff’s case-in-chief
- Direct examination
- Objections
- Sample objections
- Cross examination
- Impeachment
- After plaintiff’s case-in-chief
- Defendant’s case-in-chief
- Rebuttal and surrebuttal
The closing stages of a trial
- Closing arguments
- Jury instructions
- Jury deliberation
- Judgment
Transcript
Hi. I\’m Matt, and welcome to lesson five, civil procedure at the trial stage.
Lesson five will cover things to know about the trial stage, starting the trial process, presentation of evidence, and the closing stages of a trial.
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 pretrial 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.
We\’ll look at these in-depth in the next section.
At a pretrial hearing, the judge and the parties narrow the issues in the case, identifying necessary witnesses and documents, make schedules, and otherwise avoid unnecessary delay in frivolous claims or defenses.
A pretrial conference might also address disposition of the case without trial, as in mediation or arbitration, and pretrial orders like motions and limine, which ask the court to limit certain evidence.
Jury selection or WADIR is the initial questioning of a panel of potential jurors to determine their fitness for trial. Prospective jurors are assembled in a courtroom, introduced to the parties, and briefed about the case, then begins a series of questions by the judge and parties or attorneys.
In many jurisdictions, judges do most of the questioning. As a party, your goals are to build rapport with the jurors and find and strike unfavorable jurors.
This might, however, conflict with the judge\’s objective, which is only to find people who can promise to follow the law. Take any opportunity to get potential jurors talking so you can detect bias before the judge limits questioning.
The opening statement is the point in the trial during which each party or his attorney may speak to the jury and describe the case. The plaintiff, the party with the burden of proof, goes first. At their core, opening statements outline the reasons the parties are in court. They are not arguments.
Now it\’s time to present evidence. Evidence is anything offered to prove or disprove the existence of a fact. In a trial, evidence is presented in the form of witnesses or exhibits. Again, since he has the burden of proof, the plaintiff presents his or her case first.
The main case put on by a party is called the case in chief. In his case in chief, the plaintiff will present evidence to convince the trier of fact, the judge or jury, to render a verdict in his favor.
To meet the burden of proof, the plaintiff must have a prima facie case. That is, he must present the evidence that meets all elements of the claim. During his case in chief, the plaintiff questions his own witnesses.
After that, the defendant can cross examine the plaintiff\’s witnesses.
Parties introduce evidence during direct examination. That way, witnesses can tell what they remember. During direct examinations, don\’t lead the witness by asking a series of yes or no questions. Ask open ended questions to let the witness explain.
Finally, try to anticipate and prepare for objections.
An objection is a formal request that the judge disallow testimony of a witness or other evidence that violates the rules of evidence or procedure.
Objecting gives the judge a chance to rule on an issue and preserves the issue for appeal. If a judge sustains the objection, the testimony or evidence is not allowed. If she overrules it, the testimony or evidence is allowed.
Some common objections are relevance, where the evidence does not relate to the issues, ambiguous, where the question may have more than one meaning, leading, a question that leads the witness to make an assertion, and hearsay, a question that invites a witness to offer unsubstantiated evidence. There are many other grounds for objection.
Once the plaintiff is done questioning his witness, it is the defendant\’s turn to do so. Cross examination is the questioning of a witness by the opposing party. Unlike direct examination on cross, ask leading yes or no questions to drive the witness to the conclusion you want. It\’s also important that you know what a witness will likely say. Deposing them beforehand helps with this. It also helps when you have to impeach the witness.
To impeach a witness is to challenge them on the truthfulness of their statements. One way to impeach them is to challenge them with inconsistencies between their current testimony and prior statements from a deposition or other discovery.
After the plaintiff\’s case in chief, the defendant can move for a directed verdict or judgment as a matter of law if he feels that no reasonable jury could find for the plaintiff or that the plaintiff does not have sufficient evidence to support his case.
If neither motion prevails, the case moves on to the defendant\’s case in chief.
Like the plaintiff, the defendant can now present her case in chief. She will question her own witnesses, and the plaintiff can cross examine them.
At the end of the defendant\’s case in chief, the plaintiff can present evidence to refute a claim made by the defendant. This is called a rebuttal. The plaintiff cannot go into new matters. In some cases, the defense may be allowed to respond to issues raised in the rebuttal. This is called a surrebuttal.
After the judge or jury has all the evidence, the parties present closing arguments. The purpose of closing arguments is for the parties to remind the judge or jury of key evidence and persuade them to rule in their favor. The parties might point out key evidence, interpret what the evidence means, comment on credibility of certain witnesses, and so on.
After closing arguments, the jury gets instructions or guidelines from the judge that tells them the law to follow when deciding the case. The instructions list all the elements the plaintiff must prove in order to prevail.
After closing arguments, the jury is sent away to deliberate or decide, within the guidelines of the instructions, which argument it will support.
After deliberations, the jury reaches a verdict or decision.
If no jury is involved, the judge renders a judgment. A judgment is the decision by a judge about the rights and liabilities of the parties in the case. Where there\’s a jury, the judge signs the jury\’s verdict, which makes it a judgment.
This lesson focused on civil procedure at the trial stage. We began with some basic things to know about the trial stage. Then we looked at the trial stage in chronological order from starting the trial process to presentation of evidence and the closing stages of a trial.
Up next is lesson six, civil procedure at the appeal stage, the final lesson in our course, introduction to civil procedure.