Chapter 17 seventeen trial civ lit 2nd
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    Chapter 17 seventeen trial civ lit 2nd Chapter 17 seventeen trial civ lit 2nd Presentation Transcript

    • Civil Litigation:Process and Procedures Chapter Seventeen Trial
    • Evidentiary Phase  After preliminary activity, including voir dire  Must meet the jurors expectations  Preconceived notions based on TV & film  Judge may prepare the jurors by explaining the process  Each side sets the tone in the opening statementCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
    • Final Pretrial Conference  Usually the day of the trial  Focuses on  How the trial will unfold  Time available  Final rulings on jury or evidence  Settle issues of “on-call” witnesses  Reach any final stipulations  Anything pertinent to the trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
    • Jury Selection Must choose the required number of jurors for a civil trial in that jurisdiction Pool derives from residents of the court’s geographical area Choose alternates  Will sit with the jury & hear evidence/deliberations  Can replace an ill or disqualified juror, preventing a mistrialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
    • Jury SummonsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
    • Juror Qualification QuestionnaireCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
    • Voir Dire  Screening of potential jurors  To uncover bias or prejudice  Using jury profile  To uncover any actual “conflict of interest”  Relationship to party or attorney  Employment by a potentially liable party  May be conducted by judge or attorney  Questions beyond questionnaire coverage  Part of the non-evidentiary phase of trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
    • Paralegal Role Paralegal may be responsible for  Observing the entire venire for reactions to questions  Recording responses to questions  Completing the jury chart  Names & biographical data from questionnaire  Case-specific information, such as answers to voir dire questions, past history, etc.Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
    • Jury ChartCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
    • Challenges  If the general array is constitutionally acceptable (no systematic exclusion of a protected group of people), lawyers may still challenge individuals  Challenge for cause – personal history creates a bias that impacts his or her ability to be impartial  Preemptory (or peremptory) challenge – a limited number of jurors may be removed by each side for strategic reasonsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
    • The Initial Jury Charge Once the jury is seated, the judge may instruct the members on  Discussion of the case  Media information  Duty to hear all the evidence  Duty to rely upon the information presented at trial & not bring personal biases or prior knowledge into the consideration of the caseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
    • Opening Statements Not an argument First opportunity for each side to address the jury Relayed in a manner designed to capture the jury’s attention and establish rapport & credibility  A brief synopsis of the case, from the client’s perspective  Facts to be introducedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
    • Presentation of Evidence Timing is a question of strategy  Order of witnesses for direct examination (especially “on-call” witnesses)  Introduction of evidence  Smooth transitions help hold the jury’s attention  Gaps, delays, technical problems may distract the jury & result in loss of attention – paralegal assistance helps prevent theseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
    • Plaintiff’s Case-in-Chief Plaintiff has the burden of proving all the necessary elements of the cause of action The weight of evidence required is a preponderance of the evidence This means each element must be proven to be, more likely than not, as the π claimsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
    • Direct Examination  The initial presentation of evidence for each side, order to be determined  Considerations may include  The availability of the witness  The witness’s impact  Content of testimony  Ability to present material effectively  Attention span of jurors (First? Last? Just before lunch? During the long afternoon?)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
    • Cross-Examination Opposing side has a chance to explore the witness’s testimony, test or challenge his or her truthfulness  Use of leading questions  Impeaching credibility  Ability to clearly see & interpret the event (accuracy of observation & recollection)  Contradictory prior recorded testimony or statement under oath  Possible biasCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
    • Redirect andRe-Cross Examination An opportunity to rehabilitate a witness  A chance to more fully explain an answer  Clarify any apparent inconsistencies  May not simply underscore previous testimony Limited to the scope of testimony on cross-examination (not new information)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
    • Objections Testimony or proffered exhibits do not appear to be admissible under the Rules of Evidence Must be real, reliable & relevant Failure to meet these standards may result in an objection, upon which the judge will rule  Sustained – evidence is excluded  Overruled – evidence is admitted Preserves the issue for a possible appealCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
    • Motion for a Directed Verdict When either side rests its case, the other side may make this oral motion  π rests – Δ claims they failed to meet their burden of proof, establishing all the elements of all the claims by a preponderance of the evidence  Δ rests – π claims Δ failed to establish a defense  As a matter of law, the other side must loseCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
    • Defendant’s Case-in-Chief  Defendant must  Present a defense  Assume the burden of proving any counterclaims  Presents witnesses & evidence  Same process:  Direct examination  Cross-examination  Redirect, re-cross possibleCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
    • Rebuttal and Sur-Rebuttal  π may counter Δ’s case-in-chief in a rebuttal  Limited to matters addressed in the case-in- chief  A chance to cross-examine on counterclaim  Δ may respond to π’s rebuttal in sur- rebuttal by introducing evidence  Requests for a directed verdict may be renewedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
    • Sidebars The judge confers with the attorneys  Out of the hearing of the jury  May hear arguments concerning objections  May be scheduling issues Distracting to the jury May wait for a recess, if time is not of the essence, to avoid raising suspicions in the jury’s mindsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
    • Paralegal Duties Control the Trial Notebook  Be sure witnesses are available when scheduled to appear  Be sure exhibits are available and ready to be offered into evidence at the proper point  Organize prior statements to be sure that they are available during testimony, in case the witness changes the “story” and can be impeachedCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
    • Other Paralegal Duties Observe the judge, jury & other side during trial  Reactions to testimony  Body language  Judicial attention Take notes, especially concerning potential areas for appeal Assist with electronic equipment, exhibitsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
    • Closing Arguments Last chance for an attorney to address the jury  Sum up the case  Persuade the jury to decide in his client’s favor  Utilize the notes on jury responses taken by the paralegal during trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25
    • Final Jury Charge Jury is instructed by the judge  Burden of proof  Elements of the cause(s) of action  Law to apply to the facts  Facts to determine Jury instructions may be submitted by both sides, but they are chosen & presented by the judgeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 26
    • Sample InstructionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
    • Jury Deliberations Elect a foreperson Discuss the evidence May review testimony, submit written questions to the judge May ask for a clarification of the law May have to determine  Which side wins (π or Δ)  Amount of damagesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 28
    • Verdict Slip Once a decision is made, the jury may be required to complete a verdict slip  Asks for findings on different elements and claims  Asks for final verdict  Asks for damages to be calculated The answers to the questions should be logically consistent (e.g., if Δ wins, there should be no damages awarded)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 29
    • Posttrial Motions& Entry of Judgment If the verdict is unsatisfactory, an attorney may make a posttrial motion, asking the judge to  Overturn the verdict  Increase or reduce damages If no posttrial motion is granted, an entry of judgment will be made, converting a verdict to a legally enforceable judgment, recorded on the clerk of court’s docketCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 30