In a civil trial, a judge or jury examines the evidence to decide whether, by a “preponderance of the evidence,” the defendant should be held legally responsible for the damages alleged by the plaintiff. A trial is the plaintiff’s opportunity to argue his or her case, in the hope of obtaining a judgment against the defendant. A trial also represents the defendant’s chance to refute the plaintiff’s case, and to offer his or her own evidence related to the dispute at issue. After both sides have presented their arguments, the judge or jury considers whether to find the defendant liable for the plaintiff’s claimed damages, and if so, to what extent (i.e. the amount of money damages a defendant must pay, or some other remedy). Depending on the type of case being heard, a civil trial may not necessarily focus only on the plaintiff’s allegations and the defendant’s liability. For example, in most divorce cases a trial judge reaches a decision after hearing allegations from both sides of the dispute, and enters a judgment that may favor one spouse on one issue (child custody), and the other spouse as to another issue (alimony). The following overview discussion of a civil trial is presented mostly in the context of a typical”plaintiff vs. defendant" civil case. (Note: Although a trial is the most high-profile phase of the civil lawsuit process, the vast majority of civil disputes are resolved well before trial — and in some cases before a lawsuit is even filed — via settlement between the parties, alternative dispute resolution (ADR) processes like arbitration and mediation, or through dismissal of the case.) A complete civil trial typically consists of six main phases, each of which is described in more detail below: Choosing a Jury Opening Statements Witness Testimony and Cross-Examination Closing Arguments Jury Instruction Jury Deliberation and Verdict Choosing a Jury Except in cases that are tried only before a judge (i.e. most family court cases), one of the first steps in any civil trial is selection of a jury. During jury selection, the judge (and usually the plaintiff and the defendant through their respective attorneys) will question a pool of potential jurors generally and as to matters pertaining to the particular case — including personal ideological predispositions or life experiences that may pertain to the case. The judge can excuse potential jurors at this stage, based on their responses to questioning. Also at this stage, both the plaintiff and the defendant may exclude a certain number of jurors through use of “peremptory challenges” and challenges “for cause.” A peremptory challenge can be used to exclude a juror for any reason (even gender and ethnicity in civil cases), and a challenge for cause can be used to exclude a juror who has shown that he or she cannot be truly objective in deciding the case. Opening Statements Once a jury is selected, the first “dialogue” in a personal injury trial comes in the form of two opening statements — one from the plaintiff’s attorney, and the other from an attorney representing the defendant. No witnesses testify at this stage, and no physical evidence is ordinarily utilized. Because the plaintiff must demonstrate the defendant’s legal liability based on the plaintiff’s allegations, the plaintiff’s opening statement is usually given first, and is often more detailed than that of the defendant. In some cases, the defendant may wait until the conclusion of the plaintiff’s main case before making its own opening statement. Regardless of when opening statements are made by either side in a personal injury case, during those statements: The plaintiff presents the facts of the case and the defendant’s alleged role in causing the plaintiff’s damages (or reasons to find for the plaintiff) — basically walking the jury through what the plaintiff intends to demonstrate in order to get a civil judgment against the defendant. The defendant’s attorney gives the jury the defense’s own interpretation of the facts, and sets the stage for rebutting the plaintiff’s key evidence and presenting any “affirmative” defenses to the plaintiff’s allegations (or reasons to find for the defendant). When a civil lawsuit involves multiple parties (i.e. where three individual plaintiffs sue one defendant, or one plaintiff sues two separate defendants), attorneys representing each party may give their own distinct opening arguments.
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