STEP 11 - TRIAL
The case will move to trial if the parties have not reached a settlement by the date of the pretrial conference scheduled by the court. With this in mind, a settlement is never out of play until a final judgment has been issued and the time for appeal has passed. The parties could still potentially settle a day before the trial, after the plaintiff has presented evidence, or even while the jury is deliberating their decision. An experienced trial attorney is always strategizing and knows that settling at a later stage could be desirable. Nevertheless, understanding the process of how a case is tried is important.
The attorneys for the opposing parties will meet with the court for a pre-trial conference just before trial. Details regarding the trial are worked out and agreed upon during this time. Common items to be discussed during this time include: jury selection process, 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 plaintiff and defendant are not required to be at the pre-trial conference because it is much more of a “house-keeping” meeting for the attorneys.
Voir dire (pronounced as either “vwa-deer” or “vor die-er”) is the process of selecting a jury from a larger pool of panelists. This process involves selecting and eliminating potential jurors by each side, with the party’s ultimate goal being to create a jury that will be favorable to their side of the story. In order to select the jury, the attorneys and judge ask certain questions to the panelist to determine their beliefs or experiences and whether these will prevent the panelists from fairly hearing the evidence and deciding the case based on the evidence. For example, if the plaintiff receives chiropractic care for his or her injury, the plaintiff wants to make sure that no one on the jury views chiropractic medicine as fake medicine. If a panelist has established themselves as not being able to fairly hear the case based on their answers, the attorney may “strike” the panelist for cause and they are not allowed to serve on the jury.
Some panelists will show that they can be both fair and impartial, however, some panelists panelists may show that they may be harder to convince than some other panelists. Take a motorcycle and car accident—a panelist may admit that he or she thinks motorcyclists are generally more aggressive drivers than automobile drivers. Nevertheless, that same panelist may state that he or she would find an automobile driver at fault instead of a motorcyclist if the evidence were pointing in that direction. While that panelist has not outwardly stated that he or she is so biased against motorcyclist to always rule against them, a plaintiff’s attorney might want to avoid having that panelist on the jury just in case. The attorney would remove this panelist using a “peremptory strike,” which allows an attorney to remove the panelist for any non-discriminatory reasons (in this case, a general bias against motorcyclists). Both plaintiffs and defendants are only allowed three peremptory strikes so the party’s counsel must use them strategically on unfavorable panelists who cannot be removed for cause.
While each side gets two ways (for-cause and peremptory) to strike a panelist, the opposing side is permitted to challenge both types of strikes proposed by the attorney. Ultimately, the judge decides whether or not to allow a strike after hearing each party’s argument. If the judge does not allow removal of the panelist, the attorney will most likely keep asking the panelist questions to show that a for-cause strike is necessary. The Batson challenge is the only way an attorney can challenge a peremptory strike. A peremptory challenge was seen in the United States Supreme Court case of Batson v. Kentucky. In this case, the court held that panelists cannot be struck down based on race, gender, or religion. Therefore, the opposing party can challenge the strike and they will be successful if they are able to prove the strike is based on race, gender, or religion. However, this is no easy task because all the striking attorney has to do is establish that the reason for the strike was a non-discriminatory reason.
The panelists remaining after the question (twelve plus any alternatives) will be sworn in as jurors for the trial. Voir dire can take anywhere from a few hours to several days. Although judges are able to put time limitations on voir dire, they normally do not because of how vital the correct jury is in successfully trying a case. In general, voir dire for a personal injury case takes up the entire first day.
After the jury is selected and sworn in, each side gives a statement directly to the jury. The plaintiff’s attorney makes the first opening statement since it is the plaintiff’s side that must prove the case. The goal of an opening statement for both sides is the same. The goal is not to prove anything and the statement is not evidence the jury may rely on. Rather, the statement contains a quick description of what the jury will hear from the witnesses and any other evidence that will be presented to the jury. In an opening statement, a skilled attorney will attempt to gain credibility with the jury and give them a map of what they will hear throughout the trial. It is important that an attorney is particularly careful with his or her words because any admission during the opening statement will be binding upon the party. In Rodgers v. Crum, the attorney made an enormous error in his opening statement and it resulted in judgment being granted for the opposing party immediately after the opening statement. This case illustrates how important it is to get an experienced attorney.
After opening statements, evidence will be presented by the plaintiff’s attorney to support its claims. Unlike opening statements, where the attorneys are required to speak directly to the jury, the plaintiff’s attorney is not permitted to speak directly to the jury when presenting evidence. Instead, a majority of the evidence will be presented as live testimony from witnesses and these witnesses will sometimes be used to identify certain documents that will also be used for evidence and displayed to the jury. This process can range from a few hours to several weeks, depending on the amount of evidence presented. A typical personal injury claim involving a single injury resulting from an automobile accident or slip and fall will last roughly three to four days (with presentation of plaintiff’s evidence lasting two days).
Direct examination is the basic process of plaintiff’s evidence and involves the plaintiff’s attorney calling up a witness and asking the witness a few short questions. During this direct examination, the attorney is not allowed to suggest answers to the witness. The attorney is there to make sure the witness discusses all of the relevant facts. Unlike a deposition, the court has strict rules for evidence and what can and cannot be introduced. An opposing attorney is allowed to object if the witness violates any of these rules. After an objection, the attorneys discuss the rule at issue, including any relative law that controls the outcome. This discussion is done at the bench in whispers so the jury does not hear. After the discussion is complete, the judge will decide whether or not to allow the objection.
After direct examination by the plaintiff’s attorney, the defense attorney can cross examine the witness. Cross examinations comprise of many suggestive or leading questions and the goal of this is to show inconsistencies or holes in the witness’s story or fill in information that was omitted. Additionally, the defense attorney may seek to introduce documents that challenge and contradict the witness, such as remarks made at a deposition. During this cross examination, the plaintiff’s attorney is able to make objections to any testimony, questions, or evidence that is not allowed in court.
After both the direct and cross examinations, both sides are able to round out the witness testimony. After cross examination, the process of redirect takes place by the plaintiff’s attorney and the attorney is allowed to question the witness a second time. However, this questioning is much more restricted than the questioning in direct examination. In State v. Beard, the Supreme Court of Kansas held that redirect was limited to two areas: (1) clarifying points made on cross examination, and (2) explanation of matters brought up in cross examination that were not covered in direct examination. After redirect, the defense attorney conducts re-cross examination and is limited in what he or she can ask. After re-cross, the witness is excused from the stand and the next witness is called.
The defendant is allowed to present their evidence after the conclusion of the plaintiff’s evidence. However, prior to presenting evidence, the defendant may move for summary judgment. A judge will grant summary judgment if the plaintiff has failed to produce evidence for all parts, or elements, of the claim. If the defendant can prove that the plaintiff failed the task of proving each part of the claim, the defendant can immediately win through summary judgment. However, this is rare because the judge is not allowed to assess the credibility or quality of the plaintiff’s presented evidence. With this in mind, the sole time summary judgment is appropriate is when the evidence was not able to establish a complete claim.
Similar to the plaintiff, the defendant is able to present witnesses to support its own side of the incident and support any defenses it may have. Typical witnesses include experts who disagree with the plaintiff’s experts or any witnesses that recalled the event differently than the plaintiff. The entire process (direct, cross, redirect, and re-cross) is identical to when the plaintiff presented evidence. However, the defendant will generally not present as much evidence as the plaintiff because the defendant can win by discrediting the plaintiff’s evidence in cross examination. Nonetheless, the defendant is entitled to present as much or as little evidence as it deems necessary.
After the defendant’s evidence, each side is allowed to make a closing argument directly to the jury. This is the first and last time the attorneys have the ability to tell the jury how the evidence should be used. The plaintiff goes first and recaps what evidence the jury has heard and why the evidence is credible. Additionally, the attorney can take this time to point out why the attacks on the plaintiff’s evidence or the defendant’s evidence itself was not convincing. Lastly, the plaintiff’s attorney will make a recommendation on what the damages should be in relation to the evidence presented.
In the defense attorney’s closing statement, he or she generally points out the flaws in the plaintiff’s evidence and attacks the credibility of the witnesses. The defense attorney is at an advantage because he or she does not need to necessarily convince the jury that specific assertions are true, rather, the defense attorney only needs to convince the jury to reject enough of the plaintiff’s evidence to win. A defense attorney is not permitted to make a statement about the potential consequences of ruling in favor of the plaintiff. The Kansas Supreme Court held in Sledd v. Redd that the defense attorney was not allowed to scare the jury away from deciding a case based on the assertion that finding the defendant liable for medical malpractice would result in doctors refusing to treat patients. These types of arguments will not be permitted in Kansas courts because they are impossible to prove and outside consideration for any particular case.
The plaintiff is allowed a brief rebuttal after the defense attorney’s closing statement. This is the last argument the jury will hear before deciding the case so it is important. This opportunity to the plaintiff is not always available though. In Doty v. Wells, the defendant waived his closing statement so the plaintiff’s attorney did not get to make his strongest point with regards to an attack on credibility. In holding, the Kansas Court of Appeals determined that the plaintiff had no right to rebuttal closing when the defendant does not make a closing argument.
The jurors are taken to a private room for deliberation after they are instructed on what they must find to return a verdict for either the plaintiff of defendant. Only the jurors are allowed in the room at this time. The jurors are allowed to submit questions to the judge but the questions can only be answered in specific situations. Deliberations range from a few minutes all the way up to several hours. After the jury has decided, the foreman of the jury will let the bailiff know that the jury is ready to announce its verdict. The verdict includes: (1) which side the jury finds for on each element, (2) amount of damages, and (3) any comparative fault by the plaintiff. After the verdict, the trial court hears any necessary objections and then announces that the trial has concluded and excuses the jury.