If a case proceeds beyond any pre-trial motions, and the parties do not reach a settlement outside court, the case will be decided at a trial. This happens only in a very small percentage of cases, since most parties prefer to avoid the costs, time, and uncertainty of going through a full trial. Either a judge or a jury can decide a trial in a civil case. If the plaintiff is seeking money damages of more than $20, the Constitution requires a jury trial unless both parties waive this right. If the plaintiff is seeking an injunction or another type of non-monetary remedy, a jury is not usually required. (A criminal defendant has an absolute right to a jury.)
Selecting a Jury
The jury pool consists of a random selection of the population, excluding certain people for whom serving on a jury would be a significant hardship. The judge and the attorneys will go through the process of voir dire to determine which members of the jury pool will serve on the jury. Voir dire is meant to exclude jurors who will be biased based on their relationship to the parties, their knowledge of the case, or their natural sympathy for one side or the other. If a juror appears to be biased, either side can make a challenge for cause to exclude them.
Each side also has a right to make a limited number of peremptory challenges, which are challenges without cause when no bias is apparent. There are certain constitutional restrictions on these challenges. A party cannot exclude a juror based on their race or gender.
Opening Statements and Examination of Witnesses
In the opening statement, each party’s attorney will present their theory of the case, explain the conclusion that they intend the judge or jury to reach, and outline the evidence that they will use to support their case. The plaintiff has the burden of proof in civil cases, so their attorney will start with presenting their case. This involves calling witnesses to testify on their behalf, as well as presenting any documents or other tangible items that are relevant.
First, the plaintiff’s attorney will conduct a direct examination of a witness. After they have finished asking their questions, the defendant’s attorney can conduct a cross-examination of the witness. This may involve challenging their overall credibility or the clarity of their observations. If the defense cross-examines a witness, the plaintiff’s attorney will have the opportunity to conduct a re-direct examination that responds to any flaws exposed by the cross-examination. The defense then can conduct a re-cross examination.
An ordinary witness must have personal knowledge of the facts giving rise to their testimony. They cannot give an opinion on any issue that is not related to what they could perceive with their senses. However, an expert witness can provide opinions that are based on their area of expertise, as long as they are properly qualified under the applicable rules of evidence.
The Response of the Defense
Once the plaintiff’s attorney has finished calling all of their witnesses and presenting any other evidence, the plaintiff will rest their case. The defendant then may make a motion for a directed verdict if they believe that the plaintiff did not provide evidence for all of the required elements of their claim. (This is called making a prima facie case.) If the judge agrees that the plaintiff did not provide evidence to support one or more required elements, they can grant the motion and decide the case in favor of the defendant. Otherwise, the defendant’s attorney will present their case.
The presentation of the defendant’s case will be similar to the presentation of the plaintiff’s case. The defendant’s attorney can call witnesses to testify, in addition to producing tangible evidence. The process of examining witnesses will be the same as for the plaintiff. After the defendant’s attorney conducts a direct examination of a witness, the plaintiff’s attorney can conduct a cross-examination, followed by a re-direct and a re-cross if needed.
Closing Arguments and Jury Instructions
Closing arguments offer each side an opportunity to make a final impression on the jury. The attorneys will explain what they have proven, highlight a few key points for the jury to remember, and potentially call the jury’s attention to flaws in the opponent’s arguments.
Before the jury deliberates on the case, they will receive jury instructions to guide their analysis. The attorneys will prepare a proposed set of jury instructions that will describe the law governing the case and explain how the jury should apply the law to the facts. The judge can approve the instructions or modify them as needed.
After the jury has finished their deliberations, they will issue a verdict. Juries do not need to reach a unanimous decision in civil cases. The number of jurors who must agree to reach a verdict varies from state to state. If the jury cannot reach a decision, which is rare, the court will either dismiss the case or set up a new trial.
The party who loses at trial has a right to appeal the decision to a higher court, although an appeals court will not make factual determinations and will not hear witness testimony or review new evidence. It will reverse a decision only on legal grounds.