International Society of Primerus Law Firms

What’s Going On In A Trial?

Written By:  Arthur F. Licata, Esq.

Arthur F. Licata, P.C.

Boston, Massachusetts

How does it begin? What are the steps that lead to the selection of a jury? Who participates? What are the criteria for arriving at a decision?

A trial is a story. It is primarily about who is telling the truth. The plaintiff, the person(s), commencing the lawsuit, has the responsibility of producing witnesses and documents to convince a jury by “a preponderance of the evidence” that his story is true. The defendant, in a civil case, has the option to produce witnesses and documents to disprove the plaintiff’s story and to undermine the plaintiff’s credibility. The judge is similar to a referee in a boxing match. He explains the rules to the contestants and the jury. He makes sure everyone is playing by the rules. The judge can exclude evidence from either side if it does not meet the requirements of the court rules, and laws.

The plaintiff’s attorney begins the trial by making an opening statement. He explains to the jury what the case is about; he tells them about the evidence they can expect to hear from witnesses and through documents. The use of exhibits is very effective for modern-day jurors. They have brief attention spans as a result of the technology they personally use at home, at work and at all social occasions. The plaintiff is well-advised to use photos, video, computer animation and models to help explain to a Star Wars generation the story he is trying to tell.

In the last 10 years there has developed a significant threat to the sanctity of the jury and their oath of confidentiality. All types of hand-held devices permit the jurors to surf the web, to talk to their friends and to independently explore the backgrounds of the parties to the lawsuit, e.g., the judges , the attorneys and the technical aspects of any type of evidence at issue in the trial. To put it more bluntly jurors are not limiting their decision-making to the evidence produced in the courtroom under oath and under the supervision of the judge. Under the rules of the trial court, it is supposed to be the judge who determines whether the evidence produced is appropriately admissible at trial.

After the Opening statements by the attorneys (usually the plaintiff goes first in the Opening and last at the Closing Argument), the plaintiff calls his witnesses one at a time to testify in front of the jury. The jury not only evaluates the credibility of the testimony but also examines a host of unconscious clues that form a person’s character and demeanor. Sometimes videotaped depositions are shown to the jury. This is usually done when the witnesses and experts are outside the state where the trial is held. Each person who testifies for the plaintiff is subject to cross-examination by the defendant’s lawyer. After the plaintiff’s attorney concludes the presentation of evidence it is the defendant’s turn to present evidence. The defendant attorney challenges the plaintiff’s story about how the accident happened and the severity of the plaintiff’s damages. The defendant is not required to present evidence but in a civil trial the defendant’s attorney usually chooses to do so. This is in contrast to criminal cases where the criminal defendant frequently decides not to take the stand for fear of cross-examination by the government’s attorney. In criminal cases this is called the right to remain silent. It is up to the state’s attorney to prove the government’s case beyond a reasonable doubt. The defendant does not have to “prove” anything; he is presumed innocent until proven guilty. In a civil case, the burden of proof is significantly easier. The standard is that the plaintiff must prove his case by a “preponderance of the evidence. In laymen’s terms it means “it is more likely than not;” it is “probable” that the evidence presented is persuasive under law. The classic illustration, in a civil case, is to imagine the scales of justice evenly balanced. The scales of justice have to be tilted ever so slightly for something to be probable. The criminal case must prove the defendant guilty “beyond a reasonable doubt.” It is a significantly more difficult burden to prove. These key differences are frequently misunderstood by non-lawyers and laymen who read about notorious cases in the newspapers, television and the internet. After the defendant concludes the presentation of his evidence, the judge  “charges the jury.” This is a fancy way of saying he tells them what laws to apply in this particular case. He tailors what he says about the law to help jurors with their deliberations. Many times this explaining the law to the jurors is more an exercise in hope than in practice. Jurors are frequently confused by the legal jargon read to them. This where a good judge can make an important contribution by explaining the law in terms that jurors can understand. It is then up to the jurors to deliberate, that is, to decide and come to a decision. In a criminal case the verdict must be unanimous. In a civil case usually 10 jurors out of 12 must agree on a verdict . It is also up to the jurors to decide the amount of monetary damages to award the plaintiff. It must be be based upon the evidence presented at trial. In a civil case, each side may appeal based upon an error of law read to the jurors by the judge. In a criminal case only the defendant can appeal the verdict absent some unusual circumstances. What makes the jury trial system so powerful is that these decisions are made by a cross-section of people in the community in which they live. It is not made by a king,  a dictator, a ruling elite or even by government officials. It means that even the most powerful people and corporations in the world can be compelled to appear in a U.S.A. court and give evidence. It is the great power of the people to do “justice.” However, in recent years those noble goals have been tainted by all the justice that money can buy.

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