The Trial
Read this text, which describes how most trials proceed.
At trial, the first order of business is to select a jury. (In a civil
case of any consequence, either party can request one, based on the
Sixth Amendment to the U.S. Constitution.) The judge and sometimes the
lawyers are permitted to question the jurors to be sure that they are
unbiased. This questioning is known as the voir dire (pronounced
vwahr-DEER). This is an important process, and a great deal of thought
goes into selecting the jury, especially in high-profile cases. A jury
panel can be as few as six persons, or as many as twelve, with
alternates selected and sitting in court in case one of the jurors is
unable to continue. In a long trial, having alternates is essential;
even in shorter trials, most courts will have at least two alternate
jurors.
In both criminal and civil trials, each side has opportunities to
challenge potential jurors for cause. For example, in the Robinsons'
case against Audi, the attorneys representing Audi will want to know if
any prospective jurors have ever owned an Audi, what their experience
has been, and if they had a similar problem (or worse) with their Audi
that was not resolved to their satisfaction. If so, the defense attorney
could well believe that such a juror has a potential for a bias against
her client. In that case, she could use a challenge for cause,
explaining to the judge the basis for her challenge. The judge, at her
discretion, could either accept the for-cause reason or reject it.
Even if an attorney cannot articulate a for-cause reason acceptable to
the judge, he may use one of several peremptory challenges that most
states (and the federal system) allow. A trial attorney with many years
of experience may have a sixth sense about a potential juror and, in
consultation with the client, may decide to use a peremptory challenge
to avoid having that juror on the panel.
After the jury is sworn and seated, the plaintiff's lawyer makes an
opening statement, laying out the nature of the plaintiff's claim, the
facts of the case as the plaintiff sees them, and the evidence that the
lawyer will present. The defendant's lawyer may also make an opening
statement or may reserve his right to do so at the end of the
plaintiff's case.
The plaintiff's lawyer then calls witnesses and presents the physical
evidence that is relevant to her proof. The direct testimony at trial is
usually far from a smooth narration. The rules of evidence (that govern
the kinds of testimony and documents that may be introduced at trial)
and the question-and-answer format tend to make the presentation of
evidence choppy and difficult to follow.
Anyone who has watched an actual televised trial or a television
melodrama featuring a trial scene will appreciate the nature of the
trial itself: witnesses are asked questions about a number of issues
that may or may not be related, the opposing lawyer will frequently
object to the question or the form in which it is asked, and the jury
may be sent from the room while the lawyers argue at the bench before
the judge.
After direct testimony of each witness is over, the opposing lawyer may
conduct cross-examination. This is a crucial constitutional right; in
criminal cases it is preserved in the Sixth Amendment of the U.S. Constitution (the right to confront one's accusers in open court). The formal rules
of direct testimony are then relaxed, and the cross-examiner may probe
the witness more informally, asking questions that may not seem
immediately relevant. This is when the opposing attorney may become
harsh, casting doubt on a witness's credibility, trying to trip her up
and show that the answers she gave are false or not to be trusted. This
use of cross-examination, along with the requirement that the witness
must respond to questions that are at all relevant to the questions
raised by the case, distinguishes common-law courts from those of
authoritarian regimes around the world.
Following cross-examination, the plaintiff's lawyer may then question
the witness again: this is called redirect examination and is used to
demonstrate that the witness's original answers were accurate and to
show that any implications otherwise, suggested by the cross-examiner,
were unwarranted. The cross-examiner may then engage the witness in
re-cross-examination, and so on. The process usually stops after
cross-examination or redirect.
During the trial, the judge's chief responsibility is to see that the
trial is fair to both sides. One big piece of that responsibility is to
rule on the admissibility of evidence. A judge may rule that a
particular question is out of order – that is, not relevant or
appropriate – or that a given document is irrelevant. Where the attorney
is convinced that a particular witness, a particular question, or a
particular document (or part thereof) is critical to her case, she may
preserve an objection to the court's ruling by saying exception, in
which case the court stenographer will note the exception; on appeal,
the attorney may cite any number of exceptions as adding up to the lack
of a fair trial for her client and may request a court of appeals to
order a retrial.
For the most part, courts of appeal will not reverse and remand for a
new trial unless the trial court judge's errors are prejudicial, or
an abuse of discretion. In short, neither party is entitled to a
perfect trial, but only to a fair trial, one in which the trial judge
has made only harmless errors and not prejudicial ones.
At the end of the plaintiff's case, the defendant presents his case,
following the same procedure just outlined. The plaintiff is then
entitled to present rebuttal witnesses, if necessary, to deny or argue
with the evidence the defendant has introduced. The defendant in turn
may present surrebuttal witnesses.
When all testimony has been introduced, either party may ask the judge for a directed verdict – a
verdict decided by the judge without advice from the jury. This motion
may be granted if the plaintiff has failed to introduce evidence that is
legally sufficient to meet her burden of proof or if the defendant has
failed to do the same on issues on which she has the burden of proof.
(For example, the plaintiff alleges that the defendant owes him money
and introduces a signed promissory note. The defendant cannot show that
the note is invalid. The defendant must lose the case unless he can show
that the debt has been paid or otherwise discharged.)
The defendant can move for a directed verdict at the close of the
plaintiff's case, but the judge will usually wait to hear the entire
case until deciding whether to do so. Directed verdicts are not usually
granted, since it is the jury's job to determine the facts in dispute.
If the judge refuses to grant a directed verdict, each lawyer will then
present a closing argument to the jury (or, if there is no jury, to the
judge alone). The closing argument is used to tie up the loose ends, as
the attorney tries to bring together various seemingly unrelated facts
into a story that will make sense to the jury.
After closing arguments, the judge will instruct the jury. The purpose
of jury instruction is to explain to the jurors the meaning of the law
as it relates to the issues they are considering and to tell the jurors
what facts they must determine if they are to give a verdict for one
party or the other. Each lawyer will have prepared a set of written
instructions that she hopes the judge will give to the jury. These will
be tailored to advance her client's case. Many a verdict has been
overturned on appeal because a trial judge has wrongly instructed the
jury. The judge will carefully determine which instructions to give and
often will use a set of pattern instructions provided by the state bar
association or the supreme court of the state. These pattern jury
instructions are often safer because they are patterned after language
that appellate courts have used previously, and appellate courts are
less likely to find reversible error in the instructions.
After all instructions are given, the jury will retire to a private room
and discuss the case and the answers requested by the judge for as long
as it takes to reach a unanimous verdict. Some minor cases do not
require a unanimous verdict. If the jury cannot reach a decision, this
is called a hung jury, and the case will have to be retried. When a jury
does reach a verdict, it delivers it in court with both parties and
their lawyers present. The jury is then discharged, and control over the
case returns to the judge. (If there is no jury, the judge will usually
announce in a written opinion his findings of fact and how the law
applies to those facts. Juries just announce their verdicts and do not
state their reasons for reaching them.)
Post-trial Motions
The losing party is allowed to ask the judge for a new trial or for a judgment notwithstanding the verdict (often called a judgment n.o.v., from the Latin non obstante veredicto). A judge who decides that a directed verdict is appropriate will usually wait to see what the jury's verdict is. If it is favorable to the party the judge thinks should win, she can rely on that verdict. If the verdict is for the other party, he can grant the motion for judgment n.o.v. This is a safer way to proceed because if the judge is reversed on appeal, a new trial is not necessary. The jury's verdict always can be restored, whereas without a jury verdict (as happens when a directed verdict is granted before the case goes to the jury), the entire case must be presented to a new jury. Ferlito v. Johnson & Johnson (Section 3.9 "Cases") illustrates the judgment n.o.v. process in a case where the judge allowed the case to go to a jury that was overly sympathetic to the plaintiffs.Rule 50(b) of the Federal Rules of Civil Procedure provides the authorization for federal judges making a judgment contrary to the judgment of the jury. Most states have a similar rule.
Rule 50(b) says, whenever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Not later than 10 days after entry of judgment, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with the party's motion for a directed verdict.…[A] new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.
Key Takeaway
The purpose of a trial judge is to ensure justice to all parties to the lawsuit. The judge presides, instructs the jury, and may limit who testifies and what they testify about what. In all of this, the judge will usually commit some errors; occasionally these will be the kinds of errors that seriously compromise a fair trial for both parties. Errors that do seriously compromise a fair trial for both parties are prejudicial, as opposed to harmless. The appeals court must decide whether any errors of the trial court judge are prejudicial or not.
If a judge directs a verdict, that ends the case for the party who hasn't asked for one; if a judge grants judgment n.o.v., that will take away a jury verdict that one side has worked very hard to get. Thus a judge must be careful not to unduly favor one side or the other, regardless of his or her sympathies.
Source: Don Mayer, Daniel M. Warner, George J. Siedel, Jethro K. Lieberman, and Alyssa Rose Martina, https://courses.lumenlearning.com/masterybusinesslaw/chapter/the-trial/
This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 License.