Chapter 17 seventeen trial civ lit 2nd
- 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
statement
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- 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 trial
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 mistrial
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- 5. Jury Summons
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 trial
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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.
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- 9. Jury Chart
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- 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 reasons
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 case
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Goldman/Hughes 11
- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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.
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- 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 bias
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 appeal
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 lose
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 possible
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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Goldman/Hughes 20
- 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
renewed
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 21
- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 22
- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 23
- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 24
- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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- 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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- 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 damages
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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- 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. 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
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
Goldman/Hughes 30