The Litigation Process - At Trial

A. Jury Selection

Trials are typically heard by a jury of twelve individuals. Before the trial a group of jury candidates are questioned by the counsel for each party during a process called voir dire examination. Individuals can be excluded from the jury in several ways. Each party is given a certain number of peremptory challenges through which it may exclude certain jurors; and each party can object to an individual's participation on the jury with a challenge for cause, which simply means the competency of a certain juror is questioned. The court can reject or dismiss a juror who is unqualified, even if both sides do not challenge the juror.

B. Burden of Proof

In civil litigation the plaintiff must prove its case by a "preponderance of the evidence" - a legal term of art. Think of a balance scale: if the scale tips even just slightly in the plaintiff's favor, the plaintiff has proven its case by a preponderance of the evidence.

C. Trial

Trials begin with the plaintiff's opening statement about the case to the jury. It is followed by the defendant's opening statement. The opening statement usually introduces the evidence which will be produced through examination of witnesses.

The plaintiff then calls his or her direct witnesses who explain the plaintiff's side of the case. Throughout the course of the testimony, evidence (witness testimony, pictures, records, tangible items, etc.) are presented to the jury. The defendant has the opportunity to cross-examine each of the plaintiff's direct witnesses. Cross examination is limited to the scope of the direct testimony. The defendant's attorney will attempt to impeach, or attack the credibility and accuracy, of a witness. Once the cross examination is complete, the plaintiff's attorney has an opportunity to talk to the witness again, or "redirect;" and then the defendant's attorney can "re-cross."

After the plaintiff rests, the defendant presents its side of the case in the same manner: It calls direct witnesses, the plaintiff's attorney cross examines, the defendant's attorney can redirect, and finally, the other side can recross. Once the defendant has presented all of its witnesses and evidence, the defendant rests its case.

The final stage is closing arguments, in which each side summarizes its case within the scope of the evidence which was introduced during the trial. The court then instructs the jury about their duties and explains the applicable law and evidence rules before the jury gets together to deliberate the case and reach a verdict.

D. Verdict

After the jury deliberates they will hand down a verdict. In some states, only a majority of the jurors may be required for a decision, while in others, it may have to be as much as unanimous. Moreover, some states do not even require 12 jurors in the first place, but operate with a lesser number in civil trials. In federal court, the verdict must be unanimous.

Post-Trial Activity

Following the verdict, the losing party still has several options, even if the verdict was in favor of the other party.

A. Post-Trial Motion

An attorney may request that the jury verdict be set aside due to a technicality or error.

B. Reduction of Damages

An attorney may request that the damages awarded be reduced since they are so excessive as to "shock the conscience" of a reasonable person.

C. Appeal

In a civil trial, either side may appeal if it is dissatisfied with the verdict; however, there must be some type of error to justify the appeal. An appeal is heard in the Superior Court (for state actions) or in the United States Court of Appeals (for federal actions) by a panel of judges. The trial court's determinations of fact are maintained. The appellate court is not a trier of fact; it may only determine issues of law. A petition seeking permission to appeal the decision of the Appellate court may be filed with the state Supreme Court in state court actions, or with the United States Supreme Court in federal actions. If the petition is granted, the appeal will be heard by a panel of judges. The decision of the state Supreme Court (in state actions) or the United States Supreme Court (in federal actions) is final.

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