Starting the Trial
Before the trial begins, the judge will often have to make several pretrial decisions. Among those may be the size of the jury, the number of witnesses to be allowed, limits on the length of the trial, orders on discovery and protective orders, the standard of proof to be used, how to deal with electronically stored information and any number of motions to dismiss or modify the case. These can be decided through a series of motions and pretrial hearings.[1]
While most pretrial actions are motions related to discovery, there are several civil procedure pretrial rules that can affect a case.
At any time after the complaint is filed and before the trial starts, the plaintiff can dismiss the lawsuit by filing either a notice of dismissal[2] if no answer has been filed or a stipulation of dismissal signed by all parties if an answer has been filed.
That dismissal is usually without prejudice, which means that the case can be re-filed, unless a previous claim with the same facts and parties already had been dismissed, in which case it is considered a judgment on the merits.[3] If a counterclaim has been filed or there are other considerations of fairness, the court may decline to dismiss the case[4].
The court can also dismiss the case on the defendant’s motion to dismiss if the plaintiff (or another party in a cross-claim or counterclaim) has failed to comply with the rules or a court order.[5]
When there are multiple cases filed between the same or similar parties, facts and issues, a court may consolidate them into one case, or it may order that some causes of action or parties be tried separately.[6] This is all decided by factoring in efficiency, speed, cost and fairness concerns.
Once discovery is complete and all pretrial motions have been decided, it’s “go time.” It is time for trial. Trials are governed by Title VI of the Rules and comprise rules 38-53. We will go over the most important of these rules.
Trials are conducted in accordance with strict procedures, but there is also room for individual courts to develop their own sets of rules regarding scheduling,[7] limiting the number of witnesses, admitting out-of-state counsel and numerous other decisions that are left to them by the rules.
Standards and Burdens of Proof
In civil cases, each party filing a pleading or making a motion has the legal mandate to prove the claims in the filing. This is called “burden of proof.” In civil cases, that burden uses one of two “standards of proof” that are used in weighing the evidence in a trial.
Most people are familiar with the standard of proof in a criminal case, which is that the prosecution must prove the defendant guilty of every aspect of the crime “beyond a reasonable doubt.” But civil cases carry more lenient standards of proof. Depending on the type of case, the burden of proof for a case, pleading or motion will be either the standard of “by a preponderance of the evidence” or “clear and convincing evidence.” Most civil cases and matters apply the preponderance standard.
The party bringing the pleading or motion needs to meet or exceed this burden to prevail. The trier of fact (the jury or the judge in a bench trial) decides whom and what to believe and how to assess the cumulative amount of all of the evidence and testimony. At the end of the case, the trier will “weigh” the evidence in relation to the burden of proof required in the case and decide the case.
The preponderance of the evidence standard is proof by more than 50 percent probability. This standard is often expressed by “50 percent plus one,” which is the same standard as the winner of an election—50 percent of the vote plus one more vote. Another way of stating this is that the trier of fact has to find that the plaintiff’s story is “more likely true than not,” as proved by the evidence presented at trial or in pretrial motions.
Clear and convincing is a standard somewhere between beyond a reasonable doubt and preponderance of the evidence. The Supreme Court defined the clear and convincing standard as that the evidence is highly and substantially more likely to be true than untrue; the fact finder must be convinced that the contention is highly probable.[8]
As the higher standard of proof, the clear and convincing evidence standard applies only in civil cases that have special elements to establish or which have very high values. Cases where the clear and convincing standard may be appropriate include defamation cases where freedom of speech is invoked, will contests and other inheritance cases and cases involving important family decisions such as withdrawing life support from a terminal patient. The clear and convincing standard can also be used where a fundamental liberty is involved (such as free speech).
Although not completely accurate, you may look at the standards of proof as something like this: beyond a reasonable doubt is 90-99%+; preponderance of the evidence is 50%+1; clear and convincing is maybe 75%. But each case will be decided on the basis of how the trier of fact decides to apply the burden to the evidence at hand.
Jury Trials
Before a trial can begin, the court must decide if the procedure will be decided by a jury or will be heard by the judge alone. The latter is called a “bench trial.” The right to a jury trial, even in civil cases, is guaranteed by the Seventh Amendment to the Constitution.[9] Trial juries are known as “petit” juries, as opposed to “grand” juries, who are used by prosecutors to obtain indictments.
In a civil case, both the plaintiff and the defendant have a right to demand a jury trial.[10] If neither demands a jury trial, a bench trial may be held instead. While bench and jury trials each have advantages and disadvantages, a bench trial is typically faster and less expensive than a jury trial.
The demand for a jury trial is served on the other party as a separate demand or as a part of any pleading (the complaint or answer), but must be served within 14 days after all other pleadings in the case are complete.[11]
The jury demand can include the whole case or some issues in it. For example, the plaintiff may demand that the jury only hear matters of damages, or only determine causation (who is at fault). If the jury demand does not limit itself, it’s assumed that it applies to the entire case.[12]
While a court must order a jury trial if one is demanded,[13] a judge can still order a jury trial be held even if no demand has been made by the parties[14].
The right to a jury trial, while inviolate, is not absolute. It is waived if it is not demanded within the rules.[15] It can also be withdrawn with consent. There are also a few limiting statutes in specific cases, like some lawsuits against the United States, where a jury trial is not allowed.[16]
A jury in a civil case can consist of 6 to 12 people,[17] and each juror must participate in the verdict, unless excused.[18] Many states are moving toward smaller juries, although the number of jury members (and even the number required to deliver a verdict) can sometimes be negotiated by the parties.[19] Federal procedure requires a unanimous jury verdict in a civil case, and the verdict returned by at least 6 jurors.[20] About half the states require a unanimous decision in a civil case; the others use various percentages to achieve a jury verdict.[21]
In most cases, potential jurors are notified of that status by mail, and must appear in court at a specific time to be questioned regarding their jury service on a particular case. The people so called to jury duty are the “jury panel.” Several members of the jury panel at a time are brought into the courtroom and seated in the jury box.
What follows is a process called “voir dire,” which is French for “speak the truth.” The jurors can be questioned by both sides and the judge, or just by the judge.[22] During and after voir dire, individual jury panel members can be challenged for cause or by a preemptory challenge. A successful challenge means that that person will not be seated as a member of that jury.
Challenges for cause can include challenges to a juror on the ground that she has a connection to one of the parties or counsel, stated prejudice against one of the parties, has inside knowledge of the case or anything else that might make the juror predisposed to a particular verdict. Parties can request any number of challenges for cause, though they must be granted by the court to be effective.
Preemptory challenges do not need cause. They are “wild card” challenges used to knock a potential juror out of the case for any reason or no reason. The number of preemptory challenges is limited by statute. In federal and most state trials, they are limited to three.[23] Note that while preemptory challenges do not require a reason, they cannot be made strictly based on discriminatory reasons, such as based solely on race.[24]
After voir dire is completed, the jury is seated. In some trials, alternate jurors are selected in case a juror is unable to complete the case.[25] Alternate jurors sit in on the trial but not the deliberations unless a juror is excused.
The Trial Process
What evidence is allowed in a trial is governed by the rules of evidence, which is the subject of its own course. But what the trier of fact does with that evidence determines the outcome of the case. This is called weighing the evidence. The plaintiff starts with the burden of proof and tries to get evidence up to the standard of proof. The defense tries to knock the evidence down below that standard. The responding party has no obligation to prove anything but can make arguments and present evidence that tends to disprove the allegations in the filing. A trial’s back-and-forth can set up what is known as “shifting burdens of proof.”
In most cases, both sides present opening statements to the jury. In bench trials, these statements may be dispensed with. The plaintiff then presents its “prima facie” case (sometimes called “case in chief”). The prima facie case is all of the evidence—physical or testimonial– that the plaintiff has to prove its case. During this phase, the defendant can use objections to dispute the admissibility of the evidence, but generally will not argue as to the weight of the evidence. That is saved for the final arguments.
The defendant (typically through counsel) can cross-examine the plaintiff’s witnesses in an attempt to dispute their veracity or accuracy or to diminish the weight of that evidence. That can be done by attacking the witness’s credibility, memory, honesty, etc. This is called impeaching the witness and goes to the weight of her testimony.
If the plaintiff has successfully proven its prima facie case, the defendant must rebut it to prove an affirmative defense (such as contributory negligence for a tort case, payment for a consumer debt or lack of consideration in a contract dispute).
After the plaintiff has completed its case, the defendant can move (orally or in writing) for a directed verdict.[26] A motion for a directed verdict can also be made during or after the defendant’s case, or at any time until the case goes to the jury.
A motion for a directed verdict asks the judge to find that the other party did not meet its burden of proof, and so the case (or issue) should be decided in favor of the moving party “as a matter of law.” The motion must be specific as to both the law and the facts of the case. It is roughly equivalent in effect to a pre-trial motion for summary judgment.
If the motion is granted, the moving party will win the case or the issue. If not, and the judge rules that the plaintiff has met its burden of proof in the prima facie case, then the trial moves on to the next stages.
The next phase of the trial is the defendant’s case-in-chief. The defendant attempts to rebut the plaintiff’s claims by introducing evidence that tends to disprove the plaintiff’s claims, or at least diminish the weight of the plaintiff’s evidence to below the standard of proof for the case. If the defendant has filed a counterclaim, then that phase of the case proceeds as a prima facie plaintiff’s case for the defendant, with the same procedures and burdens as if the counterclaim or cross-claim were a new case.
Following the defendant’s case in chief, the plaintiff may then also move for a directed verdict. If that is granted, the plaintiff wins. If not, the plaintiff can go on to rebut the defendant’s claims by rehabilitating the plaintiff’s case. This is done in several ways, often bringing back witnesses to directly rebut the defendant’s witnesses. The extent to which to allow rebuttal and the defendant’s “surrebuttal” (rebuttal to the rebuttal) is at the discretion of the trial judge.
Once each party has closed its case, the trial moves to its final phases. Note that after both sides have presented their cases, either or both sides may move for directed verdicts. These can be granted if the court believes that the movant is entitled to judgement “as a matter of law” because even taking all the facts in the light most favorable to the other side, no reasonable jury could find for that side. In such a case, it would be a waste of time to send the case to the jury, so the judge can direct a verdict.
Following the evidence and motions for directed verdicts, if the case is not resolved, each party can give a final argument to the jury or judge, explaining how and why it met its burden of proof, and/or why the other side did not. No new evidence is allowed in the final arguments.
Jury Deliberation and Judgment
At this point, the judge will give instructions to the members of the jury on the law of the case and on how to apply that law to the facts that they have heard.[27] These instructions can be as simple or complex as the cases themselves. The judge must explain to the jury what the applicable law is. For example, if it’s a negligence lawsuit, the judge would tell the jury what the elements of negligence claims are, how they can be proven and may even provide examples.
Before the instructions are given, the parties are given the opportunity to review the judge’s proposed instructions and make suggestions for what should be included in these instructions. Parties can, and often do, write out entire suggested jury instructions. The judge is responsible for writing the final instructions. After the instructions are finalized, the parties can also object to any part of them. Improper jury instructions may constitute grounds for appeal.
The judge will read the jury instructions and charge the jury with coming to either a special verdict or a general verdict. A special verdict is on specific issues; a general verdict is on the entire case.[28] For example, a general verdict might be whether the defendant is liable for the plaintiff’s injury. A special verdict may ask the jury whether the defendant acted with recklessness or wantonness, if those are important for the elements of the crime or damages. The judge’s instructions may even include questionnaires to help guide the jury through the process[29].
Finally, the jury or judge weighs the evidence, deliberates and comes to a decision. That decision is announced in open court, and the jury phase is concluded. The judge will write a judgment[30] at the end of the case. This judgment will reduce the jury’s findings to writing and impose a legal order for the parties to follow.
In some cases, the judge will then write a “findings of fact and conclusions of law,” which is the legal memorandum explaining that order. The judgment will also include orders regarding court costs and legal fees. In the case of multiple claims among multiple parties, the judgment of each part of the case may be rendered separately[31].
This order is filed with the clerk’s office and becomes a “final, appealable order” at that point.
In the next module, we will discuss everything that can happen after the judgment is filed, including and especially the appeals process.
[1] Fed. R. Civ. P. 16.
[2] Fed. R. Civ. P. 41(a).
[3] Fed. R. Civ. P. 41(a)(1)(B).
[4] Fed. R. Civ. P. 41(a)(2).
[5] Fed. R. Civ. P. 41(b).
[6] Fed. R. Civ. P. 42.
[7] Fed. R. Civ. P. 40.
[8] Colorado v.New Mexico, 467 U.S. 310 (1984).
[9] U.S.Const., amend. VII; Fed. R. Civ. P. 38(a).
[10] Fed. R. Civ. P. 38(b).
[11] Fed. R. Civ. P. 38(b)(1).
[12] Fed. R. Civ. P. 38(c).
[13] Fed. R. Civ. P. 39(a).
[14] Fed. R. Civ. P. 39(b).
[15] Fed. R. Civ. P. 38(d).
[16] Fed. R. Civ. P. 39(a)(2).
[17] Fed. R. Civ. P. 48(a).
[18] Fed. R. Civ. P. 48(a); 47(c).
[19] ID.
[20] Fed. R. Civ. P. 48(b).
[21] ID.
[22] Fed. R. Civ. P. 47(a). If just the judge conducts the questioning, the attorneys can ask additional questions.
[23] Fed. R. Civ. P. 47(b); 28 U.S.C. § 1870.
[24] See Batson v. Kentucky, 476 US 79 (1986).
[25] Fed. R. Civ. P. 47(c).
[26] Fed. R. Civ. P. 50.
[27] Fed. R. Civ. P. 51.
[28] Fed. R. Civ. P. 49.
[29] Fed. R. Civ. P. 49(b). This rule is complex and should be read in full.
[30] Fed. R. Civ. P. 54.
[31] Fed. R. Civ. P. 54(b).