3.7: The Trial and Appeal

After discovery is completed, the case is scheduled for a trial. In civil litigation, well over 90 percent of cases filed are resolved or settled before trial. If a case goes to trial, it means there are genuine issues of fact that the parties cannot resolve, and both sides are determined to win.

The first step in this process is to select a jury. The process of selecting a jury is called voir dire. Voir dire typically begins with the jurors filling out a written questionnaire. The questionnaire asks the jurors to identify their occupation, any work or occupational conflicts, and any potential conflicts of interest with the case. The process then continues with attorneys quizzing each potential juror to determine if he or she has any biases against upholding the law and whether he or she can keep an open mind during the trial.

After a jury has been selected and sworn in, the trial begins. The plaintiff or prosecution begins by giving an opening statement that is a preview of the trial. Attorneys inform the jury during opening statements what they expect to prove at trial. Attorneys do not make any arguments during the opening statement; they simply lay out what jurors can expect from the trial ahead. After plaintiff’s opening statement, the defendant may give an opening statement.

After opening statements, the trial moves into the examination phase. The plaintiff presents evidence first. Evidence may be in the form of documents and witness testimony. The other parties have the right to cross-examine witnesses who testify at trial. During the cross-examination, the attorney will try to discredit the witness to convince the jury that the witness is not credible. The attorney may probe into any potential biases the witness may have or try to prove that the witness’s recollection of events may not be as clear or certain as the witness believes.

Once the plaintiff has called all their witnesses and introduced all their evidence, the plaintiff will rest their case. The defendant then has an opportunity to present witnesses and evidence on their behalf. After the defense has rested its case, the attorneys once again address the jury in closing arguments. Here, the attorneys summarize the case for the jury. They address what witnesses were called and what the witnesses said. During closing arguments, the attorneys are permitted to be much more persuasive and argumentative than during the opening statement. They appeal to the jury’s emotions and argue how the jury should interpret the evidence before them.

After closing arguments are made, the judge instructs the jury on the relevant law. The jury then deliberates. During deliberations, the jury will decide what facts are true. Then it will apply those facts to the law as outlined in the jury instructions.

Central to the jury’s deliberations is the burden of proof applicable to the case. In civil cases the burden of proof is preponderance of the evidence. This standard requires the scales of justice to tilt ever so slightly toward one party. If the jury believes one side is 51 percent correct and the other is 49 percent correct, that is enough to declare a winner. It is an easy standard to meet because it only requires a party to prove that its side is more likely than not telling the truth.

During jury deliberations, the jurors are permitted to ask the judge for clarification about the law and to request to see the evidence again. If the jury is unable to come to a verdict, the jury is said to be deadlocked, and a mistrial results. Since trials are expensive and time consuming, the judge will usually instruct the jury to try its best before giving up. If the jury arrives at a decision, it is called a verdict.

The judge enters the jury’s verdict as a judgment of the court. After that, the losing party has the right to file an appeal. The appellate court only reviews the record for legal errors and cannot call new witnesses or substitute its judgment on the facts for the jury’s.

Once all appeals are exhausted, the winning party may collect the judgment entered in its favor. This process is called execution. If a party is unable or unwilling to pay the judgment, the court can order the party’s assets to be sold to satisfy the judgment.

A party cannot refile a lawsuit once it has been decided in the hopes of a more favorable outcome. The doctrine of res judicata holds that once a dispute is litigated and resolved, the parties are barred from relitigating the issue again. Res judicata is a Latin phrase that means “the thing has been decided” and it is a rule of finality in the legal system.