If the parties have not been able to reach a settlement by the date of the pretrial conference scheduled by the court, the case will move to trial. It is important to note that settlement is never out of the picture until a final judgment is issued and the time for appeal has passed. It is not uncommon for a case to settle the day before trial, after the plaintiff has presented evidence, or even as the jury is deliberating. Experienced trial attorneys will take note of developments and keep their client advised as to why settling at these late stages may become more desirable. However, it is important to know the process of trying the case should it not settle.
Just before trial, the attorneys for each party will meet with the court for a pre-trial conference. At this conference, details about the trial are worked out and agreed upon. These commonly include discussing the jury selection process, the anticipated length of the trial, and rulings by the judge on motions in limine, which attempt to determine likely evidentiary issues before they arise at trial. The parties are not required to be at this conference, as it is largely house-keeping issues that concern the process of trying the case, something that the attorneys will be responsible for.
Voir dire (pronounced as either “vwa-deer” or “vor die-er”) is the process of arriving at a jury from a larger pool of panelists. This is both a process of selecting and eliminating potential jurors by each side, trying to produce a jury that will be favorable to their version of what transacted. To do this, the attorneys and the judge ask questions that attempt to identify beliefs or experiences that will prevent a panelist from fairly hearing evidence and deciding the case based upon that evidence. For example, if the treatment received by a plaintiff is largely chiropractic care, the plaintiff’s attorney will want to ensure no one on the jury views chiropractors as “witch doctors” or such care in general as “pretend medicine.” When a panelist has established via answering these questions that he or she cannot fairly hear the case, the attorney may “strike” the panelist for cause, preventing them for severing on the jury.
Not all panelists will show that they cannot be fair and impartial, but may indicate that they may be harder to convince than other panelists. For example, in a motorcycle and car collision case, a panelist may state that she thinks that motorcyclists are generally more aggressive drivers than car drivers. However, she may also state that she would be able to find a car driver at fault in an accident with a motorcyclist if the evidence proved this. The panelist has not established that she is so biased against motorcycles that she would never find for the plaintiff, but the plaintiff’s attorney doesn’t want to have to overcome her general distrust of motorcyclists. The attorney may choose to remove this panelist using a “peremptory strike.” A peremptory strike allows an attorney to remove a panelist for any non-discriminatory reason. Each side is only entitled to three peremptory strikes, however, so they must be used strategically on unfavorable panelists that cannot be removed for cause.
The opposing party is permitted to challenge both types of strikes proposed by the other attorney. The judge will hear each side’s argument and then make a determination. If the panelist is not removed, the attorney will likely continue to ask questions to show that a for-cause strike is necessary. In the case of a peremptory strike, there is really only one challenge that can be raised: a Batson challenge. In Batson v. Kentucky, the United States Supreme Court determined that panelists cannot be struck based upon the race, gender, or religion. Thus, a party opposed to the peremptory strike can challenge that the strike is motivated by one of these factors and if this is proven, the panelist may not be removed. This is a difficult order, however, as peremptory strikes allow removal based on any non-discriminatory reason. Thus, the striking attorney needs only convince the judge that the strike was motivated by anything else to allow the panelist to be removed.
After the panelists have been questioned, the twelve that are remaining and any alternates will be sworn in as jurors for the trial. The process of voir dire can take anywhere from several days to only a few hours. Judges are allowed to put limits on voir dire, but because selecting the correct jury has been shown to be very important in successfully trying a case, judges will generally not impose many limitations on the process. For a personal injury case, the process will likely take the majority of the first day but not any more time.
Once a jury is selected and sworn in, trial begins with statements by each side directly to the jury. The plaintiff must prove its case to the jury, so the plaintiff’s attorney is allowed to make the first opening statement. The process and goals are identical for each attorney, with the only difference being the order. This statement contains an overview of what the jury will hear from witnesses, and what other evidence the jury will likely see. The goal of the opening statement is not to prove anything; in fact, the jury will be directly told by the judge that what an attorney says in the opening is not evidence the jury may rely on. Instead, a skilled attorney will use this opportunity to gain credibility with the jurors and give them a guide as to what they will hear over the course of the trial. An attorney must be careful with his words, however, as any admission made during the opening statement is binding upon the party. In fact, if the attorney makes a large error, it may result in judgment being granted for the opposing side directly after the statement, as was done in Rodgers v. Crum. This highlights the importance of selecting experienced trial counsel.
Following opening statements, the plaintiff will begin producing evidence to support its claims. Unlike opening statements, the attorneys are no longer permitted to speak directly to the jury. Instead, most evidence will be produced in the form of live testimony from witnesses. These witnesses will often be used to identify documents that will also be introduced as evidence and presented to the jury to view. Depending on the amount of evidence, this process may last a few hours or several weeks. However, most personal injury claims involving a single injury resulting from a motor vehicle collision or slip and fall will only last three to four days altogether, with presentation of plaintiff’s evidence taking about two days.
The basic process involves the plaintiff attorney calling a witness, and asking the witness very brief questions. This is known as a direct examination. The attorney is not permitted to suggest answers to the witness, and is generally just there to ensure the witness discusses the relevant facts. Unlike a deposition, there are strict rules of evidence which limit what a party may testify about and what documents may be introduced as the party discusses them. If the witness or attorney appears to be in violation of these rules, the opposing attorney is allowed to object. The attorneys then make a discussion about the rule at issue, including any relative law that controls the outcome. This is done in a way that prevents the jury from hearing the discussion, generally by having the parties discuss the matter at the bench in whispers. Once the judge has heard enough information, he or she will make a ruling that either allows or prohibits the objected action.
Following the direct examination by the plaintiff’s attorney, the defense attorney is allowed to cross examine the witness. Unlike direct examinations, cross examinations consist of largely suggestive or leading questions. The goal of this process is to show holes or inconsistencies in the story told by the witness, or fill in information that was left out. The defense counsel may also seek to introduce documents that contradict the witness, such as an inconsistent statement made at a deposition. As the roles have reversed, plaintiff’s counsel is allowed to make objections to any testimony, questions, or evidence that is impermissible in court.
Next, both sides are given a second opportunity to round out the witness testimony. Redirect by plaintiff’s counsel follows cross examination. In this process, the plaintiff’s attorney is allowed to question the witness a second time. However, the questioning is much more restricted than on direct examination. As the Supreme Court of Kansas noted in State v. Beard, redirect is limited to two areas: clarifying points made on cross examination and explain matters brought up in cross examination that were not covered in direct examination. Defense counsel is likewise limited on the final examination, known as re-cross examination, to the matters discussed in redirect. Following re-cross, if any is taken, the witness is excused from the stand and the next witness called to start the process over.
After the plaintiff has introduced all evidence, the defendant is allowed to put on their own evidence. First, however, the defendant may move for summary judgment. Summary judgment is granted when the plaintiff has failed to produce evidence for all parts, or elements, of the claim. Since the plaintiff is assigned the task of proving to the jury each part of the claim, the defendant can win the case at this point by showing the plaintiff failed its task. Absent a large mistake by plaintiff’s attorney, this motion will likely be denied since the judge is not allowed to assess the credibility or quality of the evidence plaintiff produced. The only time summary judgment is appropriate is when the evidence simply was not capable of establishing a complete claim.
The defendant is allowed to present witness to support its version of what happened and any defenses it has. These often include opposing experts that disagree with the medical diagnose of plaintiff’s experts, or witnesses that recall the event differently than the plaintiff. The process is identical to that of the plaintiff that introduces evidence: direct, cross, redirect, and re-cross. The parties are simply reversed for the presentation of this evidence. Generally, defendant will not produce as much evidence as the plaintiff because the defendant can win by simply discrediting enough of the plaintiff’s evidence via cross examination. However, the defendant is allowed the opportunity to present as much or as little evidence as needed.
Following the defendant’s presentation of evidence, each side is allowed to make a closing argument directly to the jury. This is the first and only opportunity the attorneys have to talk to the jury about how the evidence that has been presented should be used. The plaintiff is allowed to go first, just as with the other portions of trial. The attorney will summarize what evidence the jury has heard, and why that evidence is credible. The attorney can also point out why the defendant’s evidence or attacks on plaintiff’s evidence were not convincing. Finally, the plaintiff’s attorney will make a recommendation concerning damages based upon the evidence that has been presented.
Defense counsel is presented with the same opportunity to present a closing argument directly to the jury. The focus is generally directed towards pointing out flaws in the plaintiff’s evidence and attacking credibility of witnesses. Again, the defendant is at an advantage because it need only convince the jury to reject enough of plaintiff’s evidence to prevail; the defendant doesn’t need to convince the jury that specific assertions are true unless proving a defense. Defendants may not make arguments concerning the potential consequences of a verdict in plaintiff’s favor. Common examples include higher insurance premiums or more expensive products. In Sledd v. Reed, the defense attorney argued to the jury that finding the defendant liable for medical malpractice would result in doctors refusing to treat patients. The Kansas Supreme Court found this argument clearly impermissible, as a means to scare the jury away from deciding the case based upon the evidence presented. Because such arguments are impossible to prove and outside consideration for any particular case, Kansas courts will not allow such appeals to fear to be made.
After defense counsel has made its closing argument, plaintiff will be allowed a brief rebuttal. This last word is very important, as it is the last argument the jury will hear before deciding the case. However, this opportunity cannot be assumed to be available by the plaintiff. In Doty v. Wells, the plaintiff’s attorney decided to save the strongest point for his rebuttal closing argument to respond to an anticipated attack of credibility by the defendant. However, the defendant felt comfortable waiving its closing argument, confident the jury would discredit testimony of this witness without any further argument. The Kansas Court of Appeals held that plaintiff has no right to rebuttal closing when defendant doesn’t make any closing argument.
After the jury has been instructed on what it must find to return a verdict for either side, the jurors are taken to a private room to deliberate. No party, nor court representative, may enter this room during deliberations. The jurors are permitted to submit questions to the judge, but these questions can only be answered in specific situations. Deliberations may take only a few minutes or several hours. Once completed, the foreman of the jury will let the bailiff know the jury is ready to announce its verdict. The verdict will include which side the jury finds for on each element, the amount of damages the jury awards, and any comparative fault by the plaintiff. Once the verdict is announced, the trial court will hear any necessary objections and then announce the trial concluded and the jury excused.
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