Trial Begins
Preparation: Timing is critical. There are many other
pre-trial issues to discuss. But we got tired of waiting for the trial,
and so probably did you. So let's talk a bit about the trial itself. Mediation
has failed. The judge refuses to dispose of the case by summary judgment.
The trial itself now approaches. Depending upon the complexity of the trial,
the lawyers will be preparing intensively in the weeks or months before
the trial. Good lawyers are preparing for trial from the very first day,
of course. They organize everything to fit into the eventual on-stage production
which is the trial. But here we are talking about the preparation which
occurs when it becomes apparent that the trial is really going forward,
that the expense of major preparation cannot be avoided. Trial preparation
involves a balancing and juggling of priorities. Trial preparation can
be expensive. You don't want your lawyer to delay the preparation until
the very last minute, because then your lawyer may not be fully prepared.
On the other hand, if your lawyer does too much preparation too soon, and
you then settle, you will have paid for costly preparation unnecessarily.
Also, there is some preparation that is best done nearer the trial. If
a lawyer last meets with a trial witness months before trial, the lawyer
will not have the witness information fresh in his head at the time of
trial. When a lawyer meets with actual trial witnesses, he likes to have
the benefit of discovery information from the entire case. And so, timing
of trial preparation involves strategic and economic decisions. The amount
of preparation must reasonably relate to the amount in controversy. It
makes no sense for a lawyer to spend twenty-thousand dollars of preparation
time on a case with a maximum recovery of fifteen thousand dollars (unless
perhaps the claim furnishes a right to recover attorneys fees). Typically
lawyer and client communicate on these issues as the trial approaches.
The lawyers will assemble exhibits. They may prepare diagrams, illustrations, pictures, summaries, and perhaps video tapes and movies. Trial preparation involves a supreme effort in organization. More and more lawyers are using software, databases, spreadsheets and other organizational materials. The larger and more complex the case, the greater the need for these supportive devices. During the trial, a lawyer needs to put his hands upon documents and transcripts at a moment's notice. The lawyer must prove each element of the case; he must be organized to make sure that each item of evidence has been presented and formally received. As the volume of this material increases, the need for scrupulous organization increases correspondingly. Trial organization techniques are typically not taught in law school; they are learned through long years of experience.
Judge or jury. At an earlier stage of the case,
the parties have decided whether to try the case to a judge or to a jury.
In all cases, the judge determines the legal principles which will govern
the trial. But in a jury trial, the judge "instructs" the jury on the law.
When the case goes to the jury, the jury resolves factual disputes and
renders a verdict based upon the judge's instructions.
In a trial to the court, however, the judge finds the facts and the law and renders the entire verdict. In most situations, the right to a jury trial depends upon whether the common law courts historically provided a jury trial right. Personal injury suits and contract damage claims, for example, must be tried to a jury if either party makes a jury demand. Other cases, primarily suits in equity, must be tried to a judge as the finder of fact. Claims for injunctive relief, for restitution, and for rescission, for example are tried to a judge alone. In cases triable to a jury, the parties can waive their jury rights. Judge trials tend to be significantly less expensive, but the decision to waive a jury depends upon a variety of factors specific to a particular case.
First day of Trial. At the beginning of trial,
the judge meets with the lawyers and takes care of remaining pre-trial
issues. If the parties seem close to settlement, the judge may even take
one last try at settlement. It is not uncommon to delay trial for several
hours (even a day or more is not unheard of) to engage in last minute settlement
and mediation. The judge will delay beginning of trial only so long as
the parties are making significant progress towards settlement. The judge
will ask the lawyers if there are any trial-management issues which need
to be resolved. This might include a motion in limine, to bar certain
topics from being raised during the trial, for example. A jury panel is
called to the courtroom. The lawyers and/or the judge conducts voire
dire, in which jurors are asked questions regarding possible bias.
If a party convinces the court that a juror is biased, the court will strike
that juror for cause. Depending upon local rules, each party will also
have the right to strike some jurors without cause, a right which they
exercise in alternation.
The trial really begins. Now the action begins.
The judge issues some standard pre-trial instructions to the jury. Each
party then gives an opening statement. The opening statement provides
the jury with a summary of the facts the party intends to prove. This is
the jury's first introduction to the case. Because it creates the jury's
first impression, an opening statement is a critical component of a well
presented case.
Direct Testimony. Plaintiffs case goes first. The
plaintiff's lawyer may usually present his evidence in whatever order he
desires. He may call his own client first, or save his client for last.
He may even put one of the defendant's witnesses on the stand and cross-examine.
The lawyer then begins to build plaintiff's case, brick by brick, by questioning
witnesses and introducing evidence. A lawyer's questioning of his own witnesses
is called direct examination. Ordinarily, the rules of evidence
impose a special constraint upon direct examination--the lawyer must not
lead the witness by asking questions which plainly suggest the answer.
The court wants to hear the witness's testimony, not the lawyers. A question
like: "Now the bus was going 70 miles, was it not," tells the friendly
witness to answer yes. This rule against leading your own witness puts
a premium upon communication between lawyer and witness. It is not easy
to get a witness to tell a story and to focus only on important details,
when you can't engage in leading. If you want a better understanding of
the problem a lawyer has with direct testimony, try the following experiment.
Try to get a friend to relate what happened to him, on his vacation for
example, using direct non-leading questions only. Try to make the friend
stick to the point, and tell the story in a meaningful coherent manner
without ever once telling him what answer you are looking for. Once you
try this, you will know why lawyers "rehearse" their witnesses. Many people
think lawyers rehearse witness testimony to manufacture favorable testimony.
In fact, lawyers rehearse witnesses to prevent the trial from dragging
on forever. It is nearly impossible, to change a witness' story just prior
to trial, even if one wanted to. By the time of trial, the witness has
already testified about the accident under oath in a deposition; both sides
know what the witness remembers. If the witness changes her story, the
other side will pounce.
Cross-Examination. After each direct examination,
all other parties cross-examine. Cross-examiners may lead the witness.
In fact, ordinarily they should. On cross-examination, the lawyer seeks
to bring out specific facts and admissions already cemented in prior testimony
and statements. "The bus was going 70 miles an hour, wasn't it." Or: "you
weren't wearing your glasses that afternoon, were you." The lawyer wants
to ask yes/no questions, to avoid allowing the witness to take detours.
An important part of the art of cross examination involves carefully compiling
the witness's prior statements on each critical fact and forcing the witness
to answer that same way again. If the witness changes his story, the lawyer
then confronts the witness with the prior inconsistent statement or testimony.
Calling a witness for cross examination. Lawyers
can call adverse witnesses for cross-examination. That is, with the court's
permission they can suspend the usual rule that direct examination prohibits
leading questions. The court allows cross-examination if the court believes
that the witness is sufficiently adverse: adversity guarantees that the
witness will not answer yes simply to please the examiner.
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