Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.
Civil Litigation:Process and Procedures     Chapter Seventeen           Trial
Evidentiary Phase              After preliminary activity, including               voir dire              Must meet the ...
Final Pretrial Conference      Usually the day of the trial      Focuses on             How the trial will unfold      ...
Jury Selection    Must choose the required number of jurors     for a civil trial in that jurisdiction    Pool derives f...
Jury SummonsCivil Litigation: Process and Procedures       © 2009 Pearson Education, Upper Saddle River, NJ 07458.        ...
Juror Qualification QuestionnaireCivil Litigation: Process and Procedures       © 2009 Pearson Education, Upper Saddle Riv...
Voir Dire      Screening of potential jurors             To uncover bias or prejudice             Using jury profile   ...
Paralegal Role    Paralegal may be responsible for           Observing the entire venire for reactions to            que...
Jury ChartCivil Litigation: Process and Procedures       © 2009 Pearson Education, Upper Saddle River, NJ 07458.          ...
Challenges     If the general array is constitutionally      acceptable (no systematic exclusion of a      protected grou...
The Initial Jury Charge    Once the jury is seated, the judge may     instruct the members on           Discussion of th...
Opening Statements    Not an argument    First opportunity for each side to address the     jury    Relayed in a manner...
Presentation of Evidence    Timing is a question of strategy           Order of witnesses for direct examination        ...
Plaintiff’s Case-in-Chief    Plaintiff has the burden of proving all the     necessary elements of the cause of action  ...
Direct Examination              The initial presentation of evidence for               each side, order to be determined ...
Cross-Examination    Opposing side has a chance to explore the     witness’s testimony, test or challenge his or     her ...
Redirect andRe-Cross Examination    An opportunity to rehabilitate a witness           A chance to more fully explain an...
Objections    Testimony or proffered exhibits do not appear to     be admissible under the Rules of Evidence    Must be ...
Motion for a Directed Verdict    When either side rests its case, the other     side may make this oral motion          ...
Defendant’s Case-in-Chief      Defendant must             Present a defense             Assume the burden of proving an...
Rebuttal and Sur-Rebuttal      π may counter Δ’s case-in-chief in a       rebuttal             Limited to matters addres...
Sidebars    The judge confers with the attorneys           Out of the hearing of the jury           May hear arguments ...
Paralegal Duties    Control the Trial Notebook           Be sure witnesses are available when            scheduled to ap...
Other Paralegal Duties    Observe the judge, jury & other side during     trial           Reactions to testimony       ...
Closing Arguments    Last chance for an attorney to address the     jury           Sum up the case           Persuade t...
Final Jury Charge    Jury is instructed by the judge           Burden of proof           Elements of the cause(s) of ac...
Sample InstructionsCivil Litigation: Process and Procedures        © 2009 Pearson Education, Upper Saddle River, NJ 07458....
Jury Deliberations    Elect a foreperson    Discuss the evidence    May review testimony, submit written     questions ...
Verdict Slip    Once a decision is made, the jury may be     required to complete a verdict slip          Asks for findi...
Posttrial Motions& Entry of Judgment    If the verdict is unsatisfactory, an attorney may     make a posttrial motion, as...
Upcoming SlideShare
Loading in …5
×

Chapter 17 seventeen trial civ lit 2nd

691 views

Published on

  • Be the first to comment

  • Be the first to like this

Chapter 17 seventeen trial civ lit 2nd

  1. 1. Civil Litigation:Process and Procedures Chapter Seventeen Trial
  2. 2. 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
  3. 3. 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
  4. 4. 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
  5. 5. Jury SummonsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 6. Juror Qualification QuestionnaireCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 7. 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
  8. 8. 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
  9. 9. Jury ChartCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 10. 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
  11. 11. 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
  12. 12. 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
  13. 13. 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
  14. 14. 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
  15. 15. 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
  16. 16. 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
  17. 17. 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
  18. 18. 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
  19. 19. 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
  20. 20. 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
  21. 21. 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
  22. 22. 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
  23. 23. 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
  24. 24. 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
  25. 25. 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
  26. 26. 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
  27. 27. Sample InstructionsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 27
  28. 28. 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
  29. 29. 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
  30. 30. 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

×