The Trial

The lawsuit was filed, the parties gathered evidence through the discovery process, each side retained expert witnesses.  The parties participated in mediation but did not settle the case. The parties did not accept the ruling produced through the arbitration process.

Now it’s time for the TRIAL.

Most cases settle or resolve long before trial. But not all.

A trial can bring great anxiety to lawyers and their clients.  It is never proceeds as smoothly as it appears in one-hour television dramas. 

The court schedules a date for trial, but the date almost always gets adjourned a few times before it actually takes place. The court may adjourn it because all the judges are already in the middle of other trials and unavailable to start your trial.  A party may ask for an adjournment because a witness is unavailable.  Coordinating the client, the witnesses and the experts can be a very difficult process for the lawyer.

Once the trial date arrives and the parties are in court, the judge handles pre-trial matters.  Lawyers make motions seeking rulings on whether a particular piece of evidence, or whether certain testimony, should be excluded or included. The judge and the lawyers put together a short summary of the case that the judge will read to potential jurors and a list of questions to ask jurors to determine whether a person may be disqualified from serving as a juror.

Once these and other matters are addressed by the judge and the lawyers, a large group of potential jurors are ushered into the court room.

The judge reads the summary to the individuals and the clerk announces the names of eight randomly chosen individuals to walk up and sit in the jury box.  The judge introduces the parties to the lawsuit and their lawyers then asks the jurors the qualifying questions such as whether an individual knows or is related to any of the parties, the lawyers or courthouse personnel involved.  The judge asks each potential juror to state his or her name, occupation, employer, level of education and home town.  Other questions may be asked to help the lawyers and the parties better understand the background of each potential juror.

The lawyers then tell the judge which individuals the lawyers want removed from the jury.  In a civil lawsuit in the Superior Court of New Jersey, the lawyers are each entitled to eliminate up to six individuals without needing to state a cause for elimination.  Once the lawyers uses up these six elimination requests, a lawyer may only ask that an individual be eliminated “for cause” such as the appearance of a bias from the individual’s answers to the judge’s questions.

The judge usually provides that eight individuals will be chosen with six acting as jurors and two as alternates.  The alternates are not identified until the end of the trial so that each individual juror will pay attention throughout the trial.

Once the jury is chosen, the attorney for the plaintiff (the person who filed the lawsuit) makes an opening statement to tell the jury what facts the attorney plans to prove through the evidence presented, and explains why, at the end of the case, the jury should rule in favor of the plaintiff.

The attorney for the defendant then gives an opening statement as to the facts the defendant will prove through evidence and explains why the jury should rule in favor of the defendant.

The attorney for the plaintiff then puts on the evidence of the plaintiff’s case.  Witnesses are called to the witness stand and are asked questions by the plaintiff’s lawyer.  This is called direct examination.  On completion of direct examination, the attorney for the defendant is permitted to cross examine the witness – ask questions aimed at poking holes in that witness’s testimony. 

The plaintiff’s lawyer may also introduce documents, photographs, diagrams, expert reports and out of court sworn statements into evidence to help prove the facts of the plaintiff’s case. 

Once the plaintiff has presented all the evidence in support of the plaintiff’s case, the plaintiff “rests.”  At that point, the plaintiff cannot introduce any more evidence.

Usually when the plaintiff rests, the attorney for the defendant will ask the judge to dismiss the case, arguing that even if all the evidence is believed by a jury, the plaintiff failed to put into evidence the necessary facts to prove the case.  If the plaintiff’s lawyer prepared for trial properly, the judge will deny the defendant’s request to dismiss.

The defendant then puts in evidence in the same manner as the plaintiff.  The defendant then rests. 

After both parties rest, the attorney for the defendant makes a closing argument that reviews all the evidence and encourages the jurors to believe the truth of the defendant’s evidence and to disbelieve any evidence presented by the plaintiff.   The plaintiff’s lawyer then makes a closing argument to the juror, asking the jury to find in favor of the plaintiff and grant a big cash award for damages.

The judge then gives the jury instructions on the law and explains how the jury is to consider all the evidence, to put together the story of what was more likely to be the actual events that took place leading up to the lawsuit, and to make a decision in favor of granting money to the plaintiff, or dismissing the case.  The jury goes into a separate room, discusses the case, and when the jury reaches a consensus of at least five of the six jurors, the decision is announced back in open court to the lawyers, the judge the parties.  

Look for other blog posts on the topics of Discovery, Expert Witnesses, Mediation, Legal Malpractice and Arbitration.

This article is intended as general information and not as legal advice.  If you are considering starting a lawsuit, contact an attorney at Maselli Warren, P.C. to schedule a consultation.