Generally speaking, at the trial of a typical personal injury case, the plaintiff, i.e., the injured person bringing the suit, bears the burden of persuading a jury by a “preponderance of the evidence” — a standard often described numerically as 50.1% — that the defendant was negligent (careless) and that that the defendant’s carelessness “proximately caused” the plaintiff’s injuries and related damages.
In most personal injury cases, a plaintiff testifies to what happened at the time of their injury and how that event has impacted his or her life. Friends and family members of the plaintiff are frequently called to testify as to what they have observed regarding the plaintiff’s life and how the incident has impacted their loved ones. Since many of these witnesses often speak about the plaintiff before the incident and after the incident, they are often referred to as “before and after witnesses”. Finally, a medical expert (or two) will typically be called to testify to help the plaintiff prove the causal connection between a defendant’s carelessness and the specific injuries, medical care, medical costs, and related damages a plaintiff has suffered.
Jury Selection (and the process of Voir Dire)
After the trial judge greets the parties, lawyers, and prospective jurors who have been summoned to the courthouse for the trial, the judge typically explains the basics of how he or she will be handling the case and the rules of that judge’s courtroom. The case effectively begins when the judge and the lawyers begin asking prospective jurors about themselves and their experiences. This questioning of jurors is referred to as “voir dire,” which is Latin for “speak the truth.”
Lawyers on each side of the case question potential jurors not to pry, but to learn of any biases, preconceived beliefs, or life experiences a prospective juror may have had that could greatly impact or make it difficult for that person to hear the evidence from both sides objectively, be instructed on applying the law, and decide the case impartially to both sides. After the questioning, the lawyers for the parties have the opportunity to communicate to the judge which prospective jurors they believe are well-suited to hear the case and become the actual jurors (fact finders) of the case. Once the jury is selected, the seven (7) jurors are sworn in by the judge to apply the law faithfully and ultimately return a verdict at the conclusion of the case.
Opening Statements
After a jury is sworn in by the judge, the lawyers have the opportunity to give opening statements. Think of an opening statement as a road map where the lawyers explain to the jury what the case is about, who the parties are, what evidence will be presented, and what issues the jury will likely have to decide.
Plaintiff’s Case in Chief
As the “burden of proof” is on a plaintiff in a personal injury case, the plaintiff presents his evidence first. This is done through “direct examinations” (questioning) of the witnesses the plaintiff’s lawyer wishes to present. Most lawyers know the value of demonstrative evidence, and during these direct examinations there are often visual depictions of what occurred when the plaintiff’s lawyer seeks to introduce “exhibits” such as photographs, diagrams, and videos. The defense has the opportunity to cross-examine each witness to discredit, undermine, or limit that witness’s testimony. During cross-examinations, the defense lawyers can ask witnesses leading questions. At the conclusion of presenting all of the intended evidence, the plaintiff “rests” his case.
Motion to Strike
After the plaintiff rests his case, the defense will often make a “Motion to Strike” (meaning essentially a motion to dismiss) the plaintiff’s case arguing that the plaintiff failed to present sufficient evidence to satisfy the legal requirements to prove their case. In most cases, a Motion to Strike is denied by the trial judge in favor of allowing the jury to decide the outcome of the case.
Defendant’s Case
Presuming any Motion to Strike is denied, the defense attorneys then presents their client’s case by directly examining witnesses of their own and introducing their own exhibits with the intention of countering, undermining, or disproving the plaintiff’s evidence. The plaintiff’s lawyer has the opportunity to cross-examine each defense witness to undermine, discredit, or disprove that evidence. At the conclusion of their evidence, the defense rests its case.
Rebuttal Testimony
Since the plaintiff bears the burden of proof, the plaintiff has a final opportunity to present additional witness testimony and exhibits after the defense rests to rebut any new matters presented by the defense in its case. After the plaintiff has concluded presenting any rebuttal evidence, they again rest their case. That ends the presentation of evidence.
Jury Instructions
Having heard the evidence from both sides, the judge must tell the jury the law that it must apply after it determines the facts from the evidence presented. The law provided by the judge is known as “jury instructions” and these instructions are typically chosen by the lawyers for the parties from a book called “Model Jury Instructions.” If the lawyers cannot agree on a particular instruction, the party asking that a given instruction be given will argue to the judge, outside the jury’s presence, why it should be given. The opposing lawyer then has the opportunity to argue against it. The judge ultimately decides which instructions are given to the jury. Once the compilation of jury instructions are assembled, the judge then reads each instruction to the jury. A written copy of the jury instructions is also given to jurors for their reference while deliberating.
Closing Arguments
After being instructed on the law that governs the case, the lawyers for the parties have another opportunity to address the jury with closing arguments. The plaintiff goes first, and often highlights how the plaintiff has met its burden of proof and that a verdict should be returned in plaintiff’s favor. The defense then has the opportunity to address the jury and argues why the plaintiff failed to meet its legal burden and a verdict should be returned in favor of the defense. As the plaintiff has the burden of proof, the plaintiff has the opportunity to do a short rebuttal closing argument.
Jury Deliberations
After listening to the closing arguments, the jury retreats to the jury deliberation room. They are provided with a copy of the jury instructions and all the admitted exhibits. Their first duty is to select a foreperson to guide their deliberations. After that, they are to consider the evidence, apply the law as instructed by the judge, apply their common sense, and return a unanimous verdict, which is recorded on a verdict form provided by the judge, which has been agreed to by the parties.
Returning the Verdict
Having reached a verdict, the jury is brought back into the courtroom, and the foreperson reports the verdict by reading the verdict form. The lawyers then have the opportunity to have the judge poll each juror if the verdict reported is their verdict. Having reported the verdict, the judge thanks the jurors for their service and releases them from duty.