3.4 The Trial and Appeal

After discovery is finally completed, and assuming that neither side has been successful in short-circuiting litigation through motions, the case is finally scheduled for a trial. In civil litigation, this is a most unusual development, for well over 90 percent of cases filed are resolved or settled before a trial. If a case actually goes to trial, it means there are genuine issues of fact that the parties cannot resolve, and both sides are determined to see their side win. Remember that a trial is a fact-finding process, through which the trier of fact (the jury in most cases or the judge in a bench trial) attempts to determine what happened. The trier of fact applies the facts to applicable law as instructed by the judge and determines guilt or innocence in a criminal case, or liability or no liability in a civil case. The first step in this process is to seat a jury.

At any given day in a courthouse, several citizens may be called by a judge as potential jurors in a case. If a jury needs twelve members, it’s not unusual for a judge to begin with a pool of more than fifty or sixty potential jurors to narrow down to a dozen. The process of selecting a petit jury is called voir direThe questioning of prospective jurors..

Voir dire typically begins with the jurors filling out a written questionnaire. The questionnaire asks the jurors to identify their occupation, any work or occupational conflicts, and any potential conflicts of interest with the case. The process then continues with attorneys quizzing each potential juror in turn. During this questioning, attorneys ask each juror if he or she has any biases against upholding the law and whether he or she can keep an open mind during the trial.

If an attorney does not like a juror’s response, that juror may be excused. There are two types of challenges to a potential juror: peremptory or for cause. A party can make a for causeA challenge to a prospective juror for a good reason such as bias. challenge if it can demonstrate to the judge that there is a good reason to excuse the juror, such as the juror’s personal relationship with one of the parties, or the juror’s stated unwillingness to be unbiased. Since these excuses are for a good reason, each side is allowed an unlimited number of for cause challenges. A party can also make a peremptoryA challenge to a juror without giving a reason. challenge against a juror, without giving any reason for the challenge. Since these challenges are unsupported by rationale or reason, each side is given a limited number of peremptory challenges. A party may make a peremptory challenge based on a juror’s perceived bias because of that juror’s occupation or life background but may not make a peremptory challenge because of the juror’s raceBatson v. Kentucky, 476 U.S. 79 (1986). or gender.

After a jury has been selected and sworn in, the trial begins. The plaintiff or prosecution begins by delivering an opening statementThe statement by attorneys to the jury at the beginning of the trial, laying out the essential facts of the case.. The opening statement is a preview of the trial. In it, the attorneys explain the facts of the case to the jury and indicate what witnesses they will be calling and what the witnesses will say. Attorneys do not make any arguments during the opening statement; they simply lay out what jurors can expect from the trial ahead. In a trial against your vehicle’s manufacturer, your attorney may begin by telling the jury to expect testimony from you about your car accident, from your doctor about the injuries you suffered, and perhaps from an expert witness who has examined your vehicle and believes it was manufactured defectively. Once the plaintiff has delivered an opening statement, the defendant will deliver the defense opening statement. In a criminal case, the defense has the right to reserve delivering the opening statement until after the prosecution has rested its case (concluded presenting all the witnesses).

After opening statements, the trial moves into the examination phase. Jurors are presented with witnesses, called by each side, to give evidence. The plaintiff begins by calling its witnesses. The attorney will guide the witness in delivering testimony by a series of short open-ended questions during the direct examinationExamination through questioning of a witness by the side that called the witness.. Leading questions (questions that call for a yes or no answer) are not permitted during direct examination. As the questioning proceeds, a court reporter maintains a record of all the words spoken in case there is an appeal. The opposing side may raise objections during the examination, which the judge will rule on. These rulings can also form the basis for a later appeal.

All the evidence in a trial must be introduced in this manner (questioning a live witness). If one side wants to introduce videotape into evidence, for example, it has to call the person who took the footage or was in charge of running the camera to testify about his or her personal knowledge of where the camera footage came from before the jury can watch the video. In a criminal case, if the prosecution wants to introduce the murder weapon into evidence, it must first call the detective or police officer who found the weapon to testify about where he or she found it and where it has been since then.

After direct examination, the other side has the right to conduct a cross-examinationExamination through questioning of a witness called by the opposing side.. During the cross-examination, the attorney will try to discredit the witness to convince the jury that the witness is not credible. The attorney may probe into any potential biases the witness may have or try to prove that the witness’s recollection of events may not be as clear or certain as the witness believes. During cross-examination, attorneys frequently engage in asking leading questions, which is permitted.

Once the prosecution or plaintiff has called all its witnesses, and the witnesses have undergone direct and cross-examination, then the prosecution or plaintiff will rest its case. The defendant may make a motion for a directed verdictAn action by the court to direct a verdict when a party has failed to meet its burden of proof., arguing that no reasonable juror could possibly find in favor of the prosecution or plaintiff after hearing the evidence presented so far. This motion can be made anytime during the trial before the jury returns a verdict. The motion is typically denied, and the trial moves on to the defense phase. The defense will then present its witnesses, who are led through direct and cross-examination.

After the defense has rested its case, the attorneys once again address the jury in closing argumentsSummation of the case presented by attorneys at the conclusion of presentment of evidence.. Here, the attorneys summarize the case for the jury. They address what witnesses were called and what the witnesses said. During closing arguments, the attorneys are permitted to be much more persuasive and argumentative than during the opening statement. They appeal to the jury’s emotions and argue how the jury should interpret the evidence before them.

After closing arguments are made, the judge in the case charges the jury by giving the jury its instructions. The instructions acquaint the jury with the relevant law. The jury then retires to deliberate. During deliberations, the jury will decide first what facts it believes to be true. Then it will apply those facts to the law as outlined in the jury instructions. In a trial against your vehicle’s manufacturer, for example, the judge may explain to the jury what is legally required for a product to be considered defective so that the jury can make a determination, based on the evidence presented, whether or not there is any liability.

Central to the jury’s deliberations is the burden of proofThe responsibility of a party to produce sufficient evidence to convince the trier of fact of a particular fact or issue. applicable to the case. In criminal trials, the prosecution always carries the burden of proof. That burden is to prove the defendant committed all the elements required in the crime beyond a reasonable doubtThe standard of proof in a criminal trial. It means that the evidence must be so compelling that there is no reasonable doubt as to the defendant’s guilt.. If any member of the jury has any reasonable doubts about the defendant’s guilt or innocence, then the only appropriate verdict is not guilty. Many people confuse the burden with “without a doubt.” Jurors may have doubts, but the only question for the jurors is whether they have any reasonable doubts. This standard is deliberately set high because of the severe sanctions and penalties that follow a criminal conviction. In a criminal trial, the defense only has to prove reasonable doubt exists and has no burden of proof at all. That is why in criminal trials, the defense may strategically decide to not call any witnesses and to rest its case strictly on creating doubt by cross-examining the prosecution’s witnesses.

In civil cases the burden of proof is preponderance of the evidenceThe standard of proof in a civil trial. It means that the evidence that supports the claim is more likely than not.. This standard requires the scales of justice to tilt ever so slightly toward one party to declare that party the winner. If the jury believes one side is 51 percent correct and the other is 49 percent correct, that is enough to declare a winner. It is a much easier standard to win, because it only requires a party to prove that its side is more likely than not telling the truth. In a civil liability suit against your vehicle’s manufacturer, your burden is to convince the jury that more likely than not, your vehicle was somehow defective. Sometimes it’s possible for a jury in a criminal trial to find the defendant not guilty, while a separate jury in a civil case applying a lower burden of proof finds the defendant liable for the same act. This is what happened to O. J. Simpson when he was tried for the murder of his wife.

During jury deliberations, the jurors are permitted to ask the judge for clarification about the law and to request to see the evidence again. If the jury is unable to come to a verdict, the jury is said to be deadlocked, and a mistrial results. Since trials are expensive and time consuming, the judge will usually instruct the jury to try its best before giving up. If the jury does arrive at a decision, it is called a verdictA jury’s decision..

Once the jury delivers its verdict, the losing side typically makes a motion for judgment notwithstanding the verdictA judgment setting aside the jury’s verdict.. In this motion, the party is arguing that the jury arrived at the wrong verdict and that no reasonable jury could have arrived at that verdict. The judge typically will not grant this verdict. Even if the judge believes that the jury arrived at the wrong factual conclusion, the judge is not permitted to substitute his or her judgment for that of the jury. If, however, the jury clearly ignored the law in arriving at its verdict in a criminal case, the judge may overrule the jury. This phenomenon is known as jury nullificationAn act by a jury to willingly ignore the law to achieve an equitable result or outcome..

If the judge denies the motion for judgment notwithstanding the verdict, then the judge enters the jury’s verdict as a judgmentA formal determination of a matter by a court.. After that, the losing party has the right to file an appeal. Remember that on appeal, the appellate court is only reviewing the record for legal error and cannot call new witnesses or substitute its judgment on the facts for the jury’s. In the following excerpt, Supreme Court Justice Ruth Bader Ginsburg uses the trial record to make a point in her dissenting opinion in an important employment discrimination case involving gender discrimination. Although hers was a dissenting opinion and the plaintiff lost her case, Congress reacted to the decision by passing the Lily Ledbetter Fair Pay Act, the first law signed by President Obama after he assumed office.

Once all appeals are exhausted, the winner in litigation can finally collect whatever damages it is entitled to. This process is called executionThe collection or enforcement of a judgment.. If the loser is unable or unwilling to pay the judgment, the winner can petition the court to use its full legal resources, including asking the sheriff to seize the loser’s assets for sale, to satisfy the judgment. The winner can also ask that the loser’s wages be garnishedAttachment of a debtor’s wages to pay a judgment. until the judgment is satisfied. The loser in litigation cannot refile a civil lawsuit once it has been decided under the doctrine of res judicataThe doctrine barring relitigation of issues and claims already finally determined.. Just like criminal cases cannot be retried after acquittal under the double jeopardy clause of the Constitution, res judicata operates as a bar to relitigation.