TRIAL PRACTICE
Motions Made After Defendant's Case-in-Chief
"An affirmative defense is defined as '[a] defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all allegations in the complaint are true.' " The plaintiff may move for a directed verdict (or judgment as a matter of law) on the plaintiff's claim or on any of the defendant's affirmative defenses.
Jury Selection
"Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges." During jury selection, attorneys may CHALLENGE a juror FOR CAUSE, to prevent the juror from becoming a member of the jury. In most jurisdictions, each attorney has an UNLIMITED NUMBER of challenges for cause. Each side also has a CERTAIN NUMBER of PEREMPTORY CHALLENGES. A peremptory challenge allows an attorney to dismiss a prospective juror for ALMOST ANY REASON. The number of peremptory challenges an attorney (or party) has is provided in the jurisdiction's rules of procedure, and may vary, depending on the nature, importance or complexity of the case.
Close of Evidence; Closing Arguments; Jury Instructions; Jury Deliberations
After the plaintiff's case-in-chief, the defendant's case-in-chief, the plaintiffs rebuttal and the defendant's surrebuttal, the parties may, once again, move for judgment as a matter of law. The evidence, of course, is viewed in the light most favorable to the non-movant. At this point, the parties may also move for summary judgment on the ground that no genuine issue of material fact exists and the movant is thus entitled to judgment as a matter of law. A motion for summary judgment, which is usually made much earlier in the case, asserts that the other party has not alleged or presented evidence that is sufficient to maintain its action or defense. A motion for a judgment as a matter of law, on the other hand, alleges that, even though the other party has alleged and presented evidence that would support its case, no reasonable jury could possibly find for that party; and so the judge should decide the case here and now, without submitting it to the jury. This motion can be granted even if the other party has brought in evidence to establish all the elements of its claim or defense. CLOSING ARGUMENTS: The closing argument is the time when the parties may forcefully argue their cases. The parties may summarize the evidence, point out discrepancies, and extensively argue how the law applies in their favor. Rather than tell a story, the closing argument is just that - an argument. The closing argument is the party's final attempt to persuade the jury that the opposing party is liable or that the party itself is not liable. The plaintiff, having the burden of proof, usually has the right to give her closing argument first, followed by the defendant's closing argument. In many jurisdictions, the plaintiff may use all of the allotted time, or the plaintiff may reserve time (e.g., ten minutes) to use after the defendant's closing argument. The reserved time may be viewed as a rebuttal and gives the plaintiff (or the party with the burden of proof) the last word. JURY INSTRUCTIONS: After closing arguments, the jury is instructed, usually by the judge, as to the relevant, controlling law in the jurisdiction. Some jurisdictions allow the jury to receive copies of the jury instructions so that, during deliberations, the jurors may refer to them and review the relevant law. Other jurisdictions do not allow this practice. Still other jurisdictions leave it to the judge's discretion whether to give the jury the jury instructions on paper. Jury instructions are cultivated from applicable current case and statutory law. Most jurisdictions have published jury instructions so that attorneys and judges do not have to start from scratch. Most judges have compiled their own standard jury instructions for each type of action, to be amended using the applicable facts of each case. Attorneys have a right to object to certain language in the jury instructions and to ask for particular jury instructions to be included. The attorneys will usually meet with the judge at the close of the evidence to discuss the jury instructions. "Many, if not most, district judges in this circuit routinely provide counsel with written copies of their jury instructions in advance of reading them to the jury, thereby giving counsel adequate opportunity to register their objections. In order that errors may be corrected, where possible, before they infect the jury, we strongly encourage those judges who do not already do so to follow this practice." JURY DELIBERATION AND VERDICT: If, upon deliberating for a long period of time, the jury is unable to reach a decision, the judge will be notified. Often, the judge will instruct the jurors to work together, listen to the various opinions, and try hard to reach a verdict. If, after such an instruction, the jury is still unable to reach a verdict, a mistrial will be declared. A jury that cannot reach a verdict is sometimes referred to as a hung jury. The jury will then be excused, and a retrial will be scheduled, either to be decided by a judge or by an entirely new jury.
Rebuttal and Surrebuttal
If no motion is successful in terminating the trial, the trial will continue with the plaintiff's rebuttal and the defendant's surrebuttal. The purpose of the plaintiff's rebuttal, as its name would imply, is to rebut the defendant's case-in-chief. It is conducted in the same way as the cases-in-chief, as witnesses will testify and further exhibits may be entered. The purpose of the defendant's surrebuttal is to rebut the plaintiff's rebuttal, and is conducted in similar fashion.
Motions Made After Plaintiff's Case-In-Chief
Once the plaintiff rests, the jury will leave the courtroom while the parties, the judge, the attorneys, and anyone watching the trial, remain. At this point, the defendant may move the court to order a verdict in its favor. Sometimes called a "motion for a directed verdict" or "motion for judgment as a matter of law". The plaintiff is not required to overwhelmingly prove every element, however. Federal Rule of Civil Procedure ("FRCP") 50, applicable only to jury trials, states that a party is entitled to a judgment as a matter of law if the opposing party has been fully heard on a particular issue "and there is no legally sufficient evidentiary basis for a reasonable jury" to find for the party with the burden of proof". (Note that the federal rules no longer call such a motion a motion for a "directed verdict"; rather, the federal rules always use the terminology "judgment as a matter of law".) Once the motion is made, the non-moving party, that is, the one who has allegedly presented the insufficient evidence, has the right to an opportunity to supplement its evidence so as to defeat the motion. If the non-moving party does not present adequate evidence, the motion must be granted. The court, however, must view all of the evidence in the light most favorable to the non-moving party.
Burden of Proof
The burden of proof is the "burden" or requirement, placed on a party to show that the factual evidence presented at trial supports an award of a judgment by the court or jury. The burden of proof is generally placed on the plaintiff since the plaintiff is the party bringing the lawsuit and demanding some type of legal or monetary relief. The party seeking relief must provide some information during the trial in the form of witness testimony, documentation, written statements or physical evidence, that supports its demand for relief. A party who successfully "carries" his or her burden of proof must provide the presiding judge or jury with sufficient evidence under the applicable law to support its claim. If the statute places the burden of proof on the plaintiff, and the plaintiff fails to carry its burden, then the judge must dismiss the plaintiff's case for failure to adequately establish and support its claim. However, the burden of proof does not always fall on the plaintiff. Statutes sometimes require that the defendant carry the burden of proof in some instances to establish certain issues. Alternatively, a statute may place the burden of proof initially on the plaintiff to prove certain elements and then "shift" the burden of proof to the defendant to prove the existence of other elements. Examples of elements that the defendant must prove are affirmative defenses such as incapacity, coercion and fraud.
Opening Statements
The opening statement is the opportunity for the attorney to tell the jury what the cause of action is about, what evidence the jury will hear, and the attorney's client's side of the story. In an ideal opening statement, the attorney will paint a picture of the case for the jury so that when the jury hears the evidence, it can place the various pieces of evidence in the relevant parts of the story.
Plaintiff's Case-in-Chief
The plaintiff's case-in-chief is the time that the plaintiff has the opportunity to present evidence in support of its position. The reason that the plaintiff is the first party to present evidence is that the plaintiff has the burden of proof. The main objective of the plaintiff's case-in-chief is to establish a prima facie case. Every cause of action has elements that must be established and proven in the plaintiff's case-in-chief. When each element has been established, the plaintiff has established a prima facie case. If the plaintiff fails to establish a prima facie case, the defendant may move to dismiss the case for failure to establish a prima facie case. When the plaintiff's attorney has finished his or her direct examination of the witness, the defendant's attorney has the right to cross-examine the same witness. The purpose of the cross-examination is to discredit the witness's testimony, by establishing inconsistencies or holes in the testimony or by attacking the witness's credibility. In most jurisdictions, the topics on which one may cross-examine are limited to those discussed during direct examination, except that a witness's credibility may be attacked even where the credibility issues were not raised during direct examination. When the defendant's attorney has completed his or her cross-examination of the witness, the plaintiff's attorney may re-examine the witness. This is called redirect examination (often just called "redirect".) Redirect examination is usually limited to issues raised during cross-examination. Most jurisdictions limit a witness' testimony to four examinations - direct, cross, redirect and re-cross. Some jurisdictions will allow, in special circumstances, another re-direct and re-cross. Some jurisdictions also allow the judge to ask the witness questions. In a few jurisdictions, jurors are allowed to examine the witnesses through written questions. If appropriate, the plaintiff will introduce exhibits to support its position. Exhibits are introduced through witnesses who have personal knowledge of the particular exhibit. Beyond testimony and exhibits, the plaintiff can seek to have the court take judicial notice of a fact that is well known to most people, or that can be determined from a reliable, available source. Another way to have evidence admitted is through a stipulation. A stipulation is simply a document in which the parties state that they agree to certain facts. In other words, the parties admit the facts contained in the stipulation - therefore, there is no need to present evidence pertaining to that particular fact. Once the plaintiff has called all of its witnesses and has presented all of its evidence, the plaintiff "rests" its case. In similar vein, an attorney may not, for the substantive portion of direct examination, ask questions that suggest the answer. Such questions are known as "leading questions". he Federal Rules of Evidence ("FRE") offer rules for what types of evidence (evidence includes testimony, exhibits, documents, records, etc.) are admissible in an action. One type of generally inadmissible evidence is "hearsay". Hearsay is an out-of-court statement offered for the truth of the matter asserted. Finally, even though a statement might qualify as hearsay, it may qualify for an exception to the hearsay rule. Such exceptions include admissions by party opponents, business records, and excited utterances.
Basic Trial
Under the United States Constitution, there is no absolute right to a jury trial in a civil action. The Seventh Amendment states that where the value in controversy is over twenty dollars, the right to a jury trial is preserved. Many state constitutions follow the proposition that the right to a jury trial, while not absolute, is preserved for the party that demands a jury trial. In general, any party, plaintiff or defendant, may demand a trial by jury. See Federal Rule of Civil Procedure 38. If a party fails to demand a trial by jury, he or she has waived the right to a jury trial.
