Civil Litigation:Process and Procedures
Chapter SeventeenTrial
Civil Litigation: Process and Procedures Goldman/Hughes
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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 statement
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 trial
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 mistrial
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Jury Summons
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Juror Qualification Questionnaire
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
trial
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Jury Chart
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 reasons
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 case
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 introduced
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 these
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 claims
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 bias
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.17
Redirect and Re-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 Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 appeal
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 lose
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 possible
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 renewed
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 minds
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 impeached
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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, exhibits
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 trial
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 judge
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Sample Instructions
Civil Litigation: Process and Procedures Goldman/Hughes
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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 damages
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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 Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.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 docket