Chapter 17 seventeen trial civ lit 2nd

Civil Litigation:Process and Procedures

Chapter SeventeenTrial

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.2

Evidentiary Phase After preliminary activity,

including voir dire Must meet the jurors

expectations Preconceived notions based on TV &

film Judge may prepare the jurors by

explaining the process Each side sets the tone in the

opening statement




Final Pretrial Conference Usually the day of the trial Focuses on

How the trial will unfold Time available Final rulings on jury or evidence Settle issues of “on-call” witnesses Reach any final stipulations Anything pertinent to the trial




Jury Selection Must choose the required number of

jurors for a civil trial in that jurisdiction Pool derives from residents of the

court’s geographical area Choose alternates

Will sit with the jury & hear evidence/deliberations

Can replace an ill or disqualified juror, preventing a mistrial




Jury Summons




Juror Qualification Questionnaire




Voir Dire Screening of potential jurors

To uncover bias or prejudice Using jury profile To uncover any actual “conflict of

interest” Relationship to party or attorney Employment by a potentially liable party

May be conducted by judge or attorney Questions beyond questionnaire

coverage Part of the non-evidentiary phase of

trial




Paralegal Role Paralegal may be responsible for

Observing the entire venire for reactions to questions

Recording responses to questions Completing the jury chart

Names & biographical data from questionnaire

Case-specific information, such as answers to voir dire questions, past history, etc.




Jury Chart




Challenges If the general array is constitutionally

acceptable (no systematic exclusion of a protected group of people), lawyers may still challenge individuals Challenge for cause – personal history

creates a bias that impacts his or her ability to be impartial

Preemptory (or peremptory) challenge – a limited number of jurors may be removed by each side for strategic reasons




The Initial Jury Charge Once the jury is seated, the judge

may instruct the members on Discussion of the case Media information Duty to hear all the evidence Duty to rely upon the information

presented at trial & not bring personal biases or prior knowledge into the consideration of the case




Opening Statements Not an argument First opportunity for each side to address

the jury Relayed in a manner designed to capture

the jury’s attention and establish rapport & credibility A brief synopsis of the case, from the

client’s perspective Facts to be introduced




Presentation of Evidence Timing is a question of strategy

Order of witnesses for direct examination (especially “on-call” witnesses)

Introduction of evidence Smooth transitions help hold the jury’s

attention Gaps, delays, technical problems may

distract the jury & result in loss of attention – paralegal assistance helps prevent these




Plaintiff’s Case-in-Chief Plaintiff has the burden of proving all

the necessary elements of the cause of action

The weight of evidence required is a preponderance of the evidence

This means each element must be proven to be, more likely than not, as the π claims




Direct Examination

The initial presentation of evidence for each side, order to be determined

Considerations may include The availability of the witness The witness’s impact

Content of testimony Ability to present material effectively

Attention span of jurors (First? Last? Just before lunch? During the long afternoon?)




Cross-Examination Opposing side has a chance to explore

the witness’s testimony, test or challenge his or her truthfulness Use of leading questions Impeaching credibility

Ability to clearly see & interpret the event (accuracy of observation & recollection)

Contradictory prior recorded testimony or statement under oath

Possible bias




Redirect and Re-Cross Examination An opportunity to rehabilitate a

witness A chance to more fully explain an

answer Clarify any apparent inconsistencies May not simply underscore previous

testimony Limited to the scope of testimony on

cross-examination (not new information)




Objections Testimony or proffered exhibits do not

appear to be admissible under the Rules of Evidence

Must be real, reliable & relevant Failure to meet these standards may result

in an objection, upon which the judge will rule Sustained – evidence is excluded Overruled – evidence is admitted

Preserves the issue for a possible appeal




Motion for a Directed Verdict When either side rests its case, the

other side may make this oral motion π rests – Δ claims they failed to meet their

burden of proof, establishing all the elements of all the claims by a preponderance of the evidence

Δ rests – π claims Δ failed to establish a defense

As a matter of law, the other side must lose




Defendant’s Case-in-Chief Defendant must

Present a defense Assume the burden of proving any

counterclaims Presents witnesses & evidence Same process:

Direct examination Cross-examination Redirect, re-cross possible




Rebuttal and Sur-Rebuttal π may counter Δ’s case-in-chief in a

rebuttal Limited to matters addressed in the

case-in-chief A chance to cross-examine on

counterclaim Δ may respond to π’s rebuttal in sur-

rebuttal by introducing evidence Requests for a directed verdict may

be renewed




Sidebars The judge confers with the attorneys

Out of the hearing of the jury May hear arguments concerning

objections May be scheduling issues

Distracting to the jury May wait for a recess, if time is not of

the essence, to avoid raising suspicions in the jury’s minds




Paralegal Duties Control the Trial Notebook

Be sure witnesses are available when scheduled to appear

Be sure exhibits are available and ready to be offered into evidence at the proper point

Organize prior statements to be sure that they are available during testimony, in case the witness changes the “story” and can be impeached




Other Paralegal Duties Observe the judge, jury & other side

during trial Reactions to testimony Body language Judicial attention

Take notes, especially concerning potential areas for appeal

Assist with electronic equipment, exhibits




Closing Arguments Last chance for an attorney to

address the jury Sum up the case Persuade the jury to decide in his

client’s favor Utilize the notes on jury responses taken

by the paralegal during trial




Final Jury Charge Jury is instructed by the judge

Burden of proof Elements of the cause(s) of action Law to apply to the facts Facts to determine

Jury instructions may be submitted by both sides, but they are chosen & presented by the judge




Sample Instructions




Jury Deliberations Elect a foreperson Discuss the evidence May review testimony, submit written

questions to the judge May ask for a clarification of the law May have to determine

Which side wins (π or Δ) Amount of damages




Verdict Slip Once a decision is made, the jury

may be required to complete a verdict slip Asks for findings on different

elements and claims Asks for final verdict Asks for damages to be calculated

The answers to the questions should be logically consistent (e.g., if Δ wins, there should be no damages awarded)




Posttrial Motions & Entry of Judgment If the verdict is unsatisfactory, an attorney

may make a posttrial motion, asking the judge to Overturn the verdict Increase or reduce damages

If no posttrial motion is granted, an entry of judgment will be made, converting a verdict to a legally enforceable judgment, recorded on the clerk of court’s docket

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Chapter 17 seventeen trial civ lit 2nd