There are few words in the English language more dramatic than “trial.”
After all, it’s the sexy part of law—the theater of arguments, accusations, defenses
and human drama.
But it’s important not to get wrapped up in the bells and whistles of the civil trial
process…
… and focus on knowing what to expect so as to prepare and execute accordingly.
Let’s start right before the commencement of a trial, which means that a complaint has
been filed…
… the defendant has filed an answer and no settlement has been reached…
… nor has the court granted a motion to dismiss or a motion for summary judgment.
Now comes the moment of truth.
But if you are just now thinking about a jury trial, it is too late.
You needed to have stated your desire for a jury trial when you filed your first pleading.
It is very important you make that demand in the complaint if you are a plaintiff, or
in your answer if you are a defendant.
Not every kind of case can be tried by a jury.
Some cases, like foreclosure, are tried by the judge—meaning they act as both judge
and jury.
So let’s say your case can be tried by a jury and you remembered to demand a jury trial
in your pleading.
How do you get ready?
Well, you start with the discovery process.
This gives each party the opportunity to collect information, documentation, testimony and
evidence in preparation for the trial.
Find out more about “discovery” by checking out the LegalYou video on exactly this subject.
The parties notify the court that it can set trial with a Notice of Trial, which either
party can file as soon as the case is “at issue.”
“At issue” means that there are no more pleadings to file and the court has disposed
of any motions attacking the pleadings.
The Notice of Trial includes the estimated time required for the trial…
… and whether it is to be tried by a jury.
The court can then set the case for trial on a date which is at least 30 days from that
order.
Remember to show up on time, have all your witnesses and exhibits at the courthouse ready
to go, and always, always bring a court reporter.
Without a court reporter, if something goes wrong at trial, you will never be able show
what happened and you won’t be able to appeal.
On the first day of the jury trial, the first thing you will be doing is choosing a jury—which
entails the plaintiff, defendant and judge questioning potential jurors and determining
if they’re right for the case from their responses.
The judge is the captain of the ship and has a lot of leeway in what order things will
happen at trial and how much time will be allowed for each part.
But here is what typically happens…
The trial begins with opening statements.
This is where each party, in turn presents their side of the case and either demonstrate
how they will get a judgment in their favor or rebut the case against them.
After opening statements, the plaintiff will begin their case.
This means questioning the witnesses the plaintiff wants the jury to hear from, as well as putting
exhibits into evidence.
Witness testimony, and then cross-examination, is really the heart and soul of any trial.
Usually, the party who calls the witness gets first crack.
That party asks all the questions they want the witness to answer, as long as the answers
are admissible.
That’s followed by the other party’s cross-examination.
This is where the opposing party gets a chance to show that the witness is biased, has a
faulty memory, or otherwise is not a good historian of the facts.
When you cross-examine a witness, it’s the only time you can, and should, ask leading
questions.
For example, if you have reason to believe that the witness wasn’t able to see the
color of a traffic light, you wouldn’t simply ask whether they saw the light.
You would use your best TV lawyer impersonation to make the statement you want them to agree
with, such as “You didn’t see the color of the light, did you?”
The original calling party can then do a “re-direct examination” on the same witness, to remedy
any damage from the cross-examination.
When the plaintiff has finished presenting their side, they “rest.”
That doesn’t mean they need a breather and a Gatorade.
It is just lawyer-speak for signaling they are done.
Then the defendant will present their case by calling witnesses and offer exhibits favorable
to their side.
Before and after the defendant’s case, the defendant may make motions to end the case
early—called a motion for a directed verdict in a jury trial.
That is, if the defendant thinks that the plaintiff hasn’t presented even the minimum
amount of evidence for a jury to decide in the plaintiff’s favor.
Then comes closing arguments—each party’s final chance to address the jury (or judge)
and sum up the evidence they presented in their case in the most favorable light possible.
After that, the judge gives the jury—if the case is being tried by a jury—its instructions.
Jury instructions tell the jurors the legal standards by which they must decide the case.
Then comes the judge or jury’s deliberation and verdict.
Basically their time to think.
Or, in the case of a jury, discuss the case and come to an ultimate verdict.
Jury verdicts are read aloud in court.
When it is read, listen closely, especially if it comes out against you.
If the findings of the jury make the verdict contradict itself, it is important to object
and point this out to the judge right away before the jury is dismissed.
After a jury verdict, the judge will thank the jury for their community service and dismiss
them.
Later, the judge will enter a judgment in favor of the party that the jury concluded
should win.
To give yourself the best possible chance at trial—no matter which side you find yourself
on—LegalYou is a tool that can’t afford to go unutilized.
LegalYou.
Where you are your own best lawyer.