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 Print this Page Civil Litigation - TrialNorthern California Civil Litigation InformationIf the case cannot be resolved through arbitration, settlement conferences, or mediation, then the inevitable result is a trial. A trial is either a "jury trial" or a "court trial" (no jury). Usually, if one party requests a jury trial, then you will have a trial by jury. The trial process has a number of steps, including the following: (1) pre-trial motions, (2) jury selection (also known as "voir dire"), (3) opening statements, (4) presentation of evidence, (5) closing argument, (6) jury instructions and deliberation, (7) announcement of the verdict, and (8) post-trial rulings.
Before a jury is chosen, the judge will attempt to resolve as many issues as possible before the trial starts. The most common disputes concern whether certain evidence is admissible or not. Outside the presence of the jury or jury pool, the judge will listen to the respective attorney's arguments (made in what are called "motions in limine"), and decide whether the disputed evidence will be admitted or excluded at trial. A common motion in limine is a defendant's motion to exclude evidence of defendant's insurance (assuming the defendant has insurance to potentially cover the loss), which is routinely granted. In the typical case, for example an auto accident case, the defendant is usually covered by insurance. However, whether or not the defendant had insurance has no bearing on whether he caused the accident or not, nor does it have any bearing on the existence or extent of plaintiff's injuries. Thus, insurance is not relevant to any issue in the case, and therefore, evidence of the defendant's insurance (and the plaintiff's for that matter) is not admissible. Similarly, defendant's lack of insurance, or the fact that plaintiff had insurance for the accident is also inadmissible for the same reasons. Irrelevant evidence is never admissible.
Unless a jury is waived by all the parties, the parties will need to select twelve jurors and usually two alternate jurors. These fourteen individuals are selected from a much larger "jury pool." Jury selection allows potential jurors to be removed by the judge or the parties in order to avoid any prejudice or unfairness to any one party. An easy example is where a potential juror happens to be a friend of one of the parties. They would likely be excused from consideration. During the jury selection process, the attorneys for each party are allowed to ask questions concerning each potential juror's background in order to identify any individuals who might have any prejudice against his client. In a normal case with two sides (plaintiff and defendant), each party is allowed to dismiss six potential jurors without any explanation or reason. These are referred to as "peremptory challenges." In addition, if an attorney believes a particular juror is prejudiced or otherwise predisposed to rule against his client or in favor of the other party, then the attorney may challenge that prospective juror "for cause." At that point, the judge must rule whether or not the prospective juror has demonstrated a sufficient prejudice or bias which would be unfair to that party.
After the jury is chosen and sworn in to hear the case, the attorneys each make an "opening statement," which is basically an introduction to the case and a presentation of expected testimony and evidence. No argument is allowed at this point - only reference to admissible evidence is allowed.
After opening statements, the plaintiff presents his case. The plaintiff's attorney will call a witness to the stand and conduct direct examination. The attorney may introduce documents or other evidence such as photographs or physical evidence. After the plaintiff's attorney has concluded direct examination of the witness, the defendant's attorney is allowed to cross-examine the witness. The same witness may again be questioned by the plaintiff's attorney (re-direct examination) and then again by the defendant's attorney (re-cross-examination), and the process may continue in the same general fashion until the plaintiff's attorney excuses the witness. The plaintiff may call additional witnesses, and this process is repeated. After the plaintiff's attorney has examined and excused all of his witnesses, the plaintiff will "rest." It is then the defendant's attorney's turn to present the defendant's case. The defendant's attorney may call other witnesses in the same fashion. In general, once the defendant has examined and excused all his witnesses, the defense will "rest," thus concluding the evidentiary stage of the trial.
After all the parties have rested, each party makes a closing argument. Here, each party's attorney will try to persuade the jury to render a verdict in their own client's favor by a careful review of the evidence and arguments about the facts. This is the part of the trial with which most people are familiar due to television and movies which depict trials and dramatize closing arguments. The plaintiff's attorney presents the first closing argument, followed by the defendant's closing argument. Then, because the plaintiff has the burden of proof to persuade the jury, by a "preponderance of the evidence," (i.e., more likely than not) that his version of the case is correct, the plaintiff is allowed a "rebuttal argument." Afer plaintiff's rebuttal, the case is given to the jury, and the attorney's job at trial is almost done.
After closing arguments, the judge instructs the jury on the law which applies to the case. The jury instructions are actually put together by the attorneys who, before or even during trial, argue to the judge over what laws will govern the case. The judge ultimately decides what law will govern the case and, therefore, has the final say on how the jury instructions will read. Similarly, the judge instructs the jury on any verdict form which must be completed by the jury as part of its decision. After the jury has heard the jury instructions from the judge, they retire to a jury room and deliberate, i.e., discuss and decide the case. In a civil case, a verdict is reached where nine of the twelve jurors have agreed upon the verdict. Sometimes, a jury cannot reach a verdict, even after several days of deliberations. That is referred to as a "hung jury," and the plaintiff would have to decide whether or not to re-try the case to another jury. Once the jury has made its decision, they notify the judge who then calls the attorneys to appear in court for the reading of the verdict.
Once all attorneys and parties are present following the jury's deliberations, the jury's verdict is announced. Usually, a final judgment is later prepared by the prevailing party's attorney which is based upon the jury's verdict.
The losing party may file a motion to have the court enter a judgment different than the jury's verdict or a motion for a new trial. These motions are usually denied, but can be granted under certain circumstances. Usually, the most significant post-trial hearing concerns the prevailing party's costs. Normally, the party who wins at trial is determined to be the "prevailing party" and is thus entitled to recover their costs. Not all costs are recoverable to the prevailing party. Recoverable costs include expenses like filing fees, deposition transcript expenses and jury fees. Costs vary widely depending on the case. If your case involved dozens of depositions, the prevailing party's recoverable costs may easily be in the tens of thousands of dollars. In addition, in some situations, the party who loses at trial may actually be able to recover its own costs from the other party who won a verdict. For example, if the verdict is in favor of the plaintiff in the amount of $39,000, but the plaintiff rejected an earlier arbitration award of $40,000, then the plaintiff would be responsible for paying the defendant's costs, even though the plaintiff won a $39,000 verdict. The same is true with respect to a "statutory offer to compromise" pursuant to C.C.P. §998. Under that statute, one party (a defendant, for example) makes a settlement offer to the plaintiff. If the plaintiff rejects the settlement offer but fails to obtain a better result at trial, the plaintiff (who rejected the "998 offer") must pay the defendant's costs (including the defendant's expert's fees incurred to prepare for trial), even if the plaintiff has won a money judgment.
Lawyers typically think of "attorney's fees" and "costs" as separate items. However, attorney's fees, if recoverable, are an item of "costs." In some countries and other states, a prevailing party is entitled to recover attorney's fees. In fact, that is the rule in Great Britain and which is thus known as the "English Rule." California follows the "American Rule," which awards attorney's fees to the prevailing party only in certain situations. In California, a prevailing party is entitled to recover its attorney's fees as an item of costs if such a recovery is allowed by: (1) a statute, (2) a law (e.g., "common law" or case law), or (3) a contract. < Previous | Index | Forward >
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