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What Happens at Trial?

In a personal injury trial, a judge or jury examines the evidence to decide whether the defendant should be held legally responsible for the injuries and harm alleged by the plaintiff. A trial is the plaintiff's opportunity to argue their case, with the hope of obtaining a judgment against the defendant due to the preponderance of the evidence.

A trial also represents the defendant's chance to refute the plaintiff's case and to offer their own evidence related to the dispute at issue. After both sides present their evidence, the factfinder (judge or jury) will consider all evidence. If they determine the defendant is guilty for the plaintiff's injuries, they will also determine to what extent. Then, they will decide the amount of money damages the defendant must pay.

Note: Although a trial is the most high-profile phase of the civil lawsuit process, the vast majority of personal injury disputes are resolved well before trial. In some cases, it may be resolved before a lawsuit is even filed. This may be via a resolution settlement between the parties, alternative dispute resolution (ADR) processes like arbitration and mediation, or through dismissal of the case. These pretrial methods are not discussed in this article.

A complete personal injury trial process typically consists of six main phases, each of which is described in more detail below:

  • Choosing a Jury
  • Opening Statements
  • Witness Testimony and Cross-Examination
  • Closing Arguments
  • Jury Instruction
  • Jury Deliberation and Verdict

Each step of the trial process is guided by the Federal Rules of Civil Procedure (FRCP). The FRCP governs civil cases, not criminal cases. Let's discuss what happens at a civil trial.

Choosing a Jury

Except in cases that are tried only before a judge, one of the first steps in any personal injury trial is the selection of a jury. This process is called “voir dire." During jury selection, the judge and attorneys will question a pool of potential jurors. They may ask general or specific questions pertaining to the case. These questions may include personal ideological predispositions or life experiences. The judge can excuse potential jurors at this stage, based on their responses to questioning.

Also at this stage, both the plaintiff and the defendant may exclude a certain number of jurors. They may do this through the use of "peremptory challenges" and challenges "for cause." A peremptory challenge can be used to exclude a juror for any reason (even gender or ethnicity in civil cases). A challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case.

Opening Statements

Once a jury is selected, the first "dialogue" in a personal injury trial comes in the form of two opening statements. The first is usually one from the plaintiff's attorney, and the other from an attorney representing the defendant. No witnesses testify at this stage, and no physical evidence is ordinarily utilized.

Because the plaintiff must demonstrate the defendant's legal liability for the plaintiff's injuries, the plaintiff's opening statement is usually given first. It is also often more detailed than that of the defendant. In some cases, the defendant may wait until the conclusion of the plaintiff's main case before making its own opening statement. Each side's case will be heard by the jury.

Regardless of when opening statements are made by either side in a personal injury case, during those statements:

  • The plaintiff presents the facts of the accident or injury and the defendant's alleged role in causing the plaintiff's damages. Basically, they walk the jury through what the plaintiff intends to demonstrate. This demonstration may be by way of physical evidence or witness testimony in order to get a civil judgment against the defendant.
  • The defendant's attorney gives the jury the defense's own interpretation of the facts. They set the stage for rebutting the plaintiff's key evidence. They also present any "affirmative" defenses to the plaintiff's allegations.

When a personal injury lawsuit involves multiple parties (i.e. where three individual plaintiffs sue one defendant, or one plaintiff sues two separate defendants), attorneys representing each party may give their own distinct opening arguments.

Witness Testimony and Cross-Examination

At the heart of any personal injury trial is what is often called the "case-in-chief." This is the stage at which each side presents its key evidence and arguments to the jury.

In its case-in-chief, the plaintiff methodically sets forth its evidence in an attempt to convince the jury that the defendant is legally responsible for the plaintiff's injuries and damages. It is at this point that the plaintiff may call witnesses and experts to testify, in order to strengthen their case. The plaintiff may also introduce physical evidence. Physical evidence includes photographs, documents, and medical reports.

Especially in more complicated personal injury lawsuits such as medical malpractice and defective product claims, a plaintiff's utilization of expert witness testimony and documentary evidence will be crucial in proving the defendant's legal responsibility for the extent of those damages, and any future damages resulting from ongoing treatment for those injuries. Evidence is guided by the Federal Rules of Evidence.

Whether a witness is called by the plaintiff or the defendant, the witness testimony process usually adheres to the following formula:

  • The witness is called to the stand and is "sworn in," taking an oath to tell the truth.
  • The party who called the witness to the stand questions the witness through "direct" examination, eliciting information through question-and-answer to strengthen the party's position in the dispute.
  • After direct examination, the opposing party has an opportunity to question the witness through "cross-examination" -- attempting to poke holes in the witness's story, attack their credibility, or otherwise discredit the witness and their testimony.
  • After cross-examination, the side that originally called the witness has a second opportunity to question them through "re-direct examination," and attempt to remedy any damaging effects of cross-examination

After the plaintiff concludes its case-in-chief and "rests," the defendant can present its own evidence in the same proactive manner. The defendant seeks to show that they are not liable for the plaintiff's claimed harm. The defense may call its own witnesses to the stand and can present any of its own independent evidence in an effort to refute or downplay the key elements of the plaintiff's legal allegations.

Once the defense has rested, the plaintiff has an opportunity to respond to the defense's arguments through a process known as "rebuttal." A rebuttal is a brief period during which the plaintiff may only contradict the defense's evidence. They cannot present new evidence at this time. Sometimes, the defense may in turn have a chance to respond to the prosecution's rebuttal.

If the defendant believes that the plaintiff has failed to present evidence to support the plaintiff's case-in-chief, they may move for a “directed verdict." A directed verdict asks the trial court to find that a reasonable jury could not return a verdict in favor of the plaintiff. If granted, the case is concluded in the defendant's favor. The plaintiff can make the same motion against the defendant's affirmative defenses if they feel the defense has failed to present evidence to support the defense asserted.

Once the plaintiff and defendant each have had an opportunity to present their case and to challenge the evidence presented by the other, both sides "rest," meaning that no more evidence will be presented to the jury before closing arguments are made.

Closing Arguments

Similar to the opening statement, the closing argument offers the plaintiff and the defendant in a personal injury dispute a chance to "sum up" the case. Each party recaps the evidence in a light favorable to their respective positions. During this stage, the parties can only rely on the evidence that was properly admitted during the trial. They cannot rely on new evidence or arguments related to any evidence not introduced during the trial.

This is the final chance for the parties to address the jury prior to deliberations. In closing arguments, the plaintiff seeks to show why the evidence presented requires the jury to find the defendant legally responsible for the plaintiff's injuries. In turn, the defendant tries to show that the plaintiff has fallen short of establishing the defendant's liability for any civil judgment in the plaintiff's favor.

Jury Instruction

After both sides of the case have had a chance to present their evidence and make a closing argument, the next step toward a verdict is jury instruction. Jury instruction is a process in which the judge gives the jury the set of legal standards it will need to decide whether the defendant should be held accountable for the plaintiff's alleged harm.

The judge decides what legal standards should apply to the defendant's case, based on the personal injury claims at issue and the evidence presented during the trial. Often, this process takes place with input and argument from both the plaintiff and the defendant outside of the presence of a jury.

The judge then instructs the jury on those relevant legal principles decided upon, including findings the jury will need to make in order to arrive at certain conclusions. The judge also describes key concepts, such as: the "preponderance of the evidence" legal standard; defines any specific injury claims or "torts" the jury may consider (i.e. fraud and infliction of emotional distress); and discusses different types of injury damages (i.e. compensatory and punitive) -- all based on the evidence presented at trial. The case then goes "to the jury."

Jury Deliberation and Verdict

After receiving instruction from the judge, the jurors as a group consider the case through a process called "deliberation." The jury will attempt to agree on whether the defendant should be held liable for the plaintiff's claimed injuries. They will also decide the appropriate compensation for those injuries.

Deliberation is the first opportunity for the jury to discuss the case -- a methodical process that can last from a few hours to several weeks. Once the jury reaches a decision, the jury foreperson (spokesperson on behalf of the jury) informs the judge, and the judge or the judge's clerk usually announces the verdict in open court. The accuracy of the verdict is then confirmed by the foreperson.

Most states require that a 12-person jury in a personal injury case be unanimous in finding for the plaintiff or the defendant. However, some states allow for verdicts based on a majority as low as 9 to 3. If the jury fails to reach a unanimous (or sufficient majority) verdict and finds itself at a standstill (a "hung" jury), the judge may declare a "mistrial," after which the case may be dismissed or the trial may start over again from the jury selection stage.

If the case is approved for appeal, the case will be granted a new trial in the appellate court.

Don't Go to Trial Alone: Contact an Attorney

If you're going to trial, chances are you already have legal counsel at your side. But if you've made it this far on your own, you will definitely want to consider hiring a personal injury lawyer to help guide you through your court case. Going to trial unrepresented can be a recipe for disaster as the process can be rather tricky and complex.

Speak to an experienced trial attorney today to receive legal advice and help you navigate the court process and the rules of court.

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