Entrepreneur’s Guide to Litigation – Blog Series: Trial

By: Brandon T. Flugaur

A trial gives both parties the opportunity to present their evidence and arguments before a judge, and sometimes a jury, for a determination of the issues of the case. In a trial with a jury the judge makes determinations of legal rulings, which guide the presentation of evidence, while the jury makes the findings of the facts in the case. In a trial to the court, without a jury present, the judge occupies both of these roles.

Before a trial begins a jury is selected from a larger panel of jurors called for jury duty. During the selection process the judge will address several questions to the panel and a number of jurors will be struck for cause, often due to their relationship to the parties or witnesses, or for past experiences that may disqualify them. In some jurisdictions the judge will allow counsel for each party to question witnesses in what is known as the “voir dire” procedure. Counsel for each party then has the opportunity to strike, without providing a reason, a limited number of jurors from the jury panel, subject to certain restrictions under the law.

After the jury is selected the trial begins with both parties offering opening statements. Typically the opening statements set out the roadmap of the party’s case, providing a preview to the jury of who the party will call to testify and what evidence will be presented.

After the opening statement the parties begin the presentation of their case-in-chief. Generally the plaintiff is the first to present its case. Witnesses are called to the witness stand and provide testimony in response to the party’s questioning through direct-examination. After the direct examination the opposing counsel has the opportunity to cross-examine the witness. Following this, the judge may allow re-direct and re-cross, but limited to the issues raised in the previous line of questioning. During the questioning the judge will rule on counsel’s objections concerning the propriety of questions or the admissibility of testimony under the rules of evidence. Often, before trial, the judge will have ruled on the admissibility of important pieces of testimony or evidence after considering written and oral arguments from the parties.

After both sides have presented their case-in-chief, counsel for each party presents closing arguments to the jury. Often, due to scheduling constraints of witnesses, the testimony during the trial will not be presented in perfect logical or chronological order. During closing arguments counsel will pull together all of the separate pieces of evidence and testimony from the witnesses and provide a coherent presentation of the party’s side of the dispute.

After closing arguments the judge will provide lengthy instructions to the jury to guide them during their deliberations. These include standard instructions regarding the elements of the causes of action, the admissible evidence and other legal standards that have been developed through statutes or other law. Often the case will involve non-standard legal issues as well. For these issues, counsel for the parties will submit proposed jury instructions and the judge will determine the final instructions presented to the jury. After the instructions, the jury is sent to deliberate on the merits of the case and return a verdict.

While the trial is not the final stage in the litigation process – appeal will be covered in the following section in this series – it is the stage providing the parties with the fullest opportunity to present their evidence and argument on the merits of the case.

To view the next blog in this series, click here.


One thought on “Entrepreneur’s Guide to Litigation – Blog Series: Trial

  1. Pingback: Entrepreneur’s Guide to Litigation – Blog Series: Motions for Summary Judgment « Venture Best

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