1. Civil Litigation:
Process and Procedures
Chapter Seventeen
Trial

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
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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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
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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5. Jury Summons
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6. Juror Qualification Questionnaire
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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.
All Rights Reserved.
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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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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.
All Rights Reserved.
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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
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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?)
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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
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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)
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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
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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.
All Rights Reserved.
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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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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.
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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
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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.
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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.
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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.
All Rights Reserved.
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27. Sample Instructions
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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.
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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.
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