Robbins: The way a jury trial works
All good dogs may go to heaven, but not all good cases go to trial. In fact, a relatively few cases end up before the court, which is a blessed thing, not only for the parties involved but considering the crush of what would otherwise weigh down the court.
If not to trial, where do cases go?
Some lose steam and simply go away. The party with a burr in his or her saddle makes the often bright equation that the juice of litigation is not the squeeze of time, inconvenience and cost. Others settle out, either through some haggling between the parties, negotiation by the lawyers, or else through the assistance of a mediator.
Of those that survive to see their day in court, only some will have their day before a jury. There are two reasons for this. As I have explained in prior columns, not all cases are eligible to be heard before a jury; cases founded upon the court’s equitable jurisdiction are heard by the judge rather than a jury. And, except for most criminal matters, the parties themselves can generally decide if they want to simply try the matter to the bench. Certain particular kinds of cases — divorce, bankruptcy and probate are few examples — may not be determined by a jury and, instead, must be decided by a judge.
When a case does point toward a jury trial, though, what happens? How does the case proceed once the sun has set on any hope of informal resolution?
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Before we trip across that transom, let me lay out two preliminaries. First, there is the matter of statutory offers which are probably best explained by way of example. Let’s suppose the plaintiff is seeking $1 million. Let’s say, too, that the defendant does not believe that there is much wind in the plaintiff’s sails.
Maybe she or he has a case, but not much of one. What the defendant may determine to do is make a statutory offer. She or he formally offers the plaintiff a lesser sum — let’s say in this example $50,000 — to dismiss the case. If the offer is not accepted, the trial is conducted, and the plaintiff receives less than the amount of the offer, she or he will owe the defendant all costs incurred from the time the offer was made. Sometimes this is a nice little incentive toward reaching a settlement.
The second preliminary matter is that of witness and exhibit lists. Before the trial starts, each party will produce to the court a list of exhibits that may be submitted for admission at trial. Similarly, she or he will submit a list of witnesses — both lay and expert — who she or he “will call” or “may call” at the trial. Usually, the parties will agree before the starter’s gun of trial is fired which exhibits are not contested. Too, before the trial starts, the attorneys and the judge will determine the jury instructions that are applicable to the particular case and which will be given to the jury to guide them in their decision-making.
On the first day of proceedings, a “pool” of jurors is led into the court room. In pre-COVID times, usually about 100 are summoned to report. Under current spacing guidelines it is half that many. The first 12 are shown into the jury box where they are subject to voir dire, which is literally translated from the Latin to mean “to speak the truth.”
Its fancy moniker aside, what it consists of is the court asking some general questions — occupation, marital status, hobbies, etc. — and then the lawyers for each side taking turns with their own rounds of questions. What it is meant to get at is to both ferret out potential prejudice and for the lawyers on each side to get a “feel” for who might best try the case.
Each side gets an unlimited number of exclusions “for cause.” For cause exclusion of a potential juror may be things such as, the juror is a friend of one of the parties, used to work for one of the attorneys, or any number of such things. Each side also gets a limited number (determined in advance) of preemptive challenges; a juror may be excluded from services simply because one side or the other does like the cut of his or her jib — no explanation required.
Once the jury is selected and impaneled after having been administered an oath to decide the case fairly and impartially, off we go.
First up are the lawyer’s opening statements which — rather than evidence — are the lawyers’ preliminary summaries of the case. They are a more or less concise statement of what they believe the evidence will prove and why each believes the evidence will favor his or her client’s position. As in all things in a trial, plaintiff goes first and defendant follows.
Next, the evidentiary phase of the trial begins. Witnesses are called, testimony is taken, and various kinds of evidence — documents, physical things, electronic data, etc. — are “authenticated” and introduced. The plaintiff puts on his or her case first and, only when the plaintiff “rests” does the defendant call his or her witnesses and put on his or her case.
Whoever calls a witness elicits testimony first. This kind of testimony is referred to as “direct” examination. The other side follows with “cross exam” and then the first party may “redirect.” The evidentiary phases may take a day, or several weeks or months. The longest jury trial I have personally been involved in was a federal court action which lasted two months.
When the evidentiary phase concludes and both sides “rest,” the lawyers give their closing statements, which are summaries and arguments of what each would have the jury believe the evidence has shown. Last before the jury hies off to deliberate, the judge reads the jury instructions which, depending upon the complexity of the matter, can sometimes take a considerable length of time.
Finally, the jury who elects a foreperson shuffles off to deliberate. Once a verdict is reached, they march back into the courtroom and the judge announces what the jury has determined. Thereafter, the jury is thanked and dismissed.
As I’ve noted in prior columns, law is often a highly structured affair, at no time more so than in the dance of trial before a jury in the courtroom.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com, and, coming soon, “Why I Walk So Slow.”