The Trial

    American law provides for jury trials in most actions for damages. This means that in those cases, either party may assert the right to have the facts tried by the jury. If neither wishes so, the judge will try the facts as well as apply the law.

    If a jury has been demanded, the first step of the trial is to impanel the jurors, who are selected at random from lists of eligible citizens. The court and lawyers for both parties will question the prospective jurors to determine their fairness and impartiality. If any of them is found to be biased, he may be challenged for cause and excused. A certain number of peremptory challenges, for which no cause need to be given, may also be exercised to reject potential jurors.

    After the jurors have been sworn, the lawyers make opening statements to familiarize the jury with the essential facts that each side expects to prove. Following these statements, plaintiff’s lawyer will present the evidence by  examining his witnesses and producing the documents or other exhibits. Each witness if first questioned by the lawyer who has called that witness – this is the direct examination; then by the lawyer for the other side – cross examination; this may be followed by re-direct and re-cross examination, and even further stages. Each side may object to the evidence that is thought to be inadmissible under the rules of evidence. The judge rules on the objection and maintains some control over the length and tenor of the examination.

    When the examinations of plaintiff’s witnesses are over, the plaintiff will rest. At this point, the defendant’s lawyer may ask for a directed verdict. A motion for a directed verdict asks the judge to rule that the non-moving party has failed to introduce enough evidence for the jury to find in his favor. If the motion is overruled, the defendant will present his own witnesses, who will be exposed to the same process of direct and cross-examination. When the defendant has rested, the plaintiff may present additional evidence to meet any new matter raised by the defendant’s witnesses. In turn, the defendant, after the plaintiff rests, may meet any new matter presented by the plaintiff. This procedure will continue until both parties rest.

    When both parties have rested, either or both may move for a directed verdict. If these motions are denied, the case must be submitted to the jury.

    The lawyers and the judge then retire for a conference to consider the matter of jury instructions ( also called “charge” to the jury or ” jury charge” ). Both lawyers may submit proposed instrucions, but the judge decides on the content. If a party’s lawyer has neither requested a particular instruction nor objected to the judge’s charge, he will generally not be permitted to claim on appeal that the charge was erroneous.

    Then the lawyers will make their final arguments before the jury. After the arguments, the judge will instruct the jury on the applicable law on each issue, the rules for determining the credibility of witnesses, and state who has the burden of proof. The burden of proof in a civil case ordinarily requires that the party having the burden prove his contention on a given issue by a preponderance of the evidence. What this burden means is that if a juror is unable to resolve an issue in his mind, he should find on that issue against the party who has the burden. In the federal courts and in some states, the judge may comment on the evidence, as long as he emphasizes that his comments represent his own opinion and that the jurors should not feel bound by it. Judicial comment is rare, however, and in many states it is not permitted at all.

    Following the instruction, the jury retires to reach its verdict. If a required number of jurors are able to reach a verdict, judgment will be entered accordingly. If no verdict is reached, the jury is said to be hung and a new trial before a different jury is necessary.

    A dissatisfied party after the judgment may make some post-trial motions, such as a motion for a judgment notwithstanding the verdict ( a judgment n.o.v. ) or a motion for a new trial. Such motions may be granted if the judge feels that the verdict of the jury is contrary to the clear weight of the evidence, or is erroneous as a matter of law. Should these motions fail, it is sometimes possible to reopen a judgment, but the occasions on which relief is granted are very rare.