How Civil Lawsuits Work: The Trial

Authored By: Carl Vinson Institute
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How Civil Lawsuits Work: The Trial

This document tells you the following:

  • What is the difference between questions of law and questions of fact?
  • How are juries chosen?
  • What goes on during the opening statements?
  • How is the evidence presented? What kinds of evidence are there?
  • What goes on during the closing arguments?
  • What happens during the jury deliberations? How dies the jury come to a verdict?


The trial of case no. 81999, Mary Jones v. John Smith, will be held in the Superior Court of DeKalb County, Georgia. In this case, Mary Jones, a pedestrian, was hit while crossing the street by John Smith, a driver. Mr. Hawkeye was a witness to the accident.

Thomas Fayre will be the trial judge presiding over the case. The judge's role and authority are most important to the trial.

A judge

  • insists that order prevail in the courtroom and that the case be fairly tried.
  • controls conduct of the trial, declaring recesses and continuances (or postponements) when necessary.
  • controls introduction of evidence, determining whether it will be accepted for the jury's consideration.
  • decides on motions made by the attorneys. (A motion is a request made to the judge that certain action be taken in the case.)

Questions of Law and Fact

In each legal dispute, questions of law and fact must be resolved by the court. Questions of law can only be decided by the judge. Questions of fact are decided by the judge if there is no jury. Otherwise, they are decided by the jury.

What are these kinds of questions, and how do they differ?

Questions of law are about the legal principles that apply to the case. In the case of Jones v. Smith, Judge Fayre must resolve the questions of law. For example, knowing what the law says is necessary for an act to be considered negligent, he must decide if the allegations support a claim of negligence. If they do not, he could dismiss the case.

Questions of fact concern the facts of the case. In the case of Jones v. Smith, a jury will decide the questions of fact. One question will be whether John actually committed the acts alleged by Mary. Another will be whether his actions resulted in injuries to Mary.

The Jury

The right to a trial by jury in civil cases is guaranteed by the Georgia Constitution. After the case is called for trial, the first step is the selection of the jurors. In civil cases heard in state court, juries may have only six members. However, if the amount in question is more than $10,000, either party may request 12 jurors. (A superior court jury, as is the case in Jones v. Smith, will have 12 members.)

Juries are composed of adults (people aged 18 and over) from the entire community. No one may be unfairly excluded from jury service on the basis of race or sex. However, persons who are 70 years or older can ask to have their names removed from the list.

The list of potential jurors is compiled by a county's board of jury commissioners. The board is a body of six members appointed by a superior court judge for six years. From the list, a group of citizens is called to be available for jury duty for up to a week. They compose what are called jury panels. From each panel, juries will be selected to try individual cases.

There are 36 prospective jurors in the panel for the case of Jones v. Smith. Before selecting 12 for the jury, the attorneys will ask them questions. This examination is called the voir dire, which is French for "to see and to speak." The purpose of the voir dire is to select a fair and impartial jury. The attorneys, of course, will also look for jurors who might be sympathetic to their side of the case. In effect, jurors are selected through a process of elimination (the table below describes the trial process). As you read, note the two ways in which an attorney can reject a juror.

The Trial Process in Civil (and Criminal) Cases

1. Jury Selection - voir dire
2. Opening statements
In civil cases, the plaintiff goes first; in criminal cases, the prosecution
3. Presentation of the case
Plaintiff in civil cases (or prosecution in criminal cases) - Direct examination, cross-examination, and redirect examination
Defense - direct, cross examination and redirect examination
4. Closing Statements
Plaintiff in civil cases (or prosecution in criminal cases)
Plaintiff (unless the defense presents no evidence or witnesses other than the defendant. In that case, the defendant has the option of going first and last.
5. Jury Deliberation
Judge charges the jury
Jury elects a foreman
Jury deliberates
Jury announces decision
6. Verdict (in a criminal case, sentencing follows)

The questioning begins when Judge Fayre asks all of the prospective jurors some general qualifying questions. He asks, "Are any of you related to either Mary Jones or to John Smith? Do any of you employ Mary Jones or John Smith? Are any of you a stockholder, employee, officer, or director of Peach State Automobile Insurance Company (John's insurance company)?" All of the jurors answer "no" to the judge's questions.


If one juror had answered "yes," he or she might have been rejected for cause. Rejecting for cause is one way a juror can be dismissed. It means that there is some logical reason why that juror should not be selected. Answers to questions might reveal that the juror is related to someone in the case. Or they might show that the juror has already formed an opinion about the case.


In the voir dire, the attorneys question the jurors in turn. The clerk calls the name of the first prospective juror, Patrick Pierson. He stands. Mr. Barr begins the questioning.

Mr. Barr: Are you presently employed, Mr. Pierson?
Mr. Pierson: Yes, sir. I'm a plumber. I work for Watt Pipes Plumbing Company.
Mr. Barr: Are you married, Mr. Pierson?
Mr. Pierson: Yes, sir.
Mr. Barr: Is your wife employed outside the home?
Mr. Pierson: Yes, sir. Parttime. She's a bookkeeper.

Mr. Barr then asks if Mr. Pierson has children. Mr. Pierson says he has a boy aged 13 and a girl aged 9. Mr. Barr also asks if Mr. Pierson has served on a jury in the past. He learns that Mr. Pierson was on a criminal case-a robbery.

Ms. Bright then questions Mr. Pierson. She first determines that he has never been a party in a civil case. She then asks the following questions:

Ms. Bright: Are you personally acquainted with either myself or the plaintiff's attorney, Mr. Barr?
Mr. Pierson: No, ma'am.
Ms. Bright: Are you personally acquainted with the plaintiff, Miss Jones, or my client, Mr. Smith?
Mr. Pierson: No.

Attorneys can also ask questions of the panel as a whole. Ms. Bright asks all of the jurors if they, or any member of their family, have ever been injured in an accident. She asks those who say "yes" if the injuries were serious. Mr. Pierson says that his wife once had minor injuries from an accident. The attorneys hope their questions will uncover any bias, prejudice, or preconceived notions on the jurors' part about the case.

After voir dire is completed, the attorneys proceed to select a 12member jury. Each remaining juror will be considered individually.

There will be additional dismissals as the attorneys use their peremptory strikes. With peremptory strikes, a reason for striking need not be given. Prospective jurors usually never know why they were dismissed. Usually, they are stricken because one of the attorneys feels that the prospective juror will not look favorably upon his or her client's case. However, the strikes must be used carefully. Each side has a limited number, and the first 12 persons who are not stricken from the list of potential jurors will form the jury for the trial. The plaintiff's attorney is first to strike jurors from the panel.

Attorneys may not systematically strike jurors because of their race or their sex. The U.S. Supreme Court has found that systematically removing jurors of one racial type or sex is presumptively unfair. The opposing counsel may make a motion to the trial judge accusing the other attorney of using strikes for a discriminatory purpose. The other side must then give reasons not based on race or sex for why they used their peremptory strikes against each juror they struck.

Finally, in the trial of Jones v. Smith, 12 jurors (and one alternate), including Mr. Pierson, are selected. The judge instructs them to take seats in the jury box. Those jurors not accepted are excused. When the jury is seated, Judge Fayre calls for opening statements in the trial.

Opening Statements

In a civil case, the plaintiff's attorney has the right to make the first opening statement to the jury. The opening statement is not evidence, but attorneys usually tell the jury what they expect the evidence to show. A trial is an adversary proceeding, so attorneys try to make the opening statement sound as favorable as possible to their side of the case.

Mr. Barr outlines the nature of the case to the jury in his opening statement. Mr. Barr also introduces the parties in the case. He wants the jurors to be familiar with the "cast of characters" in the trial. He begins this way:

Ladies and gentlemen of the jury, my name is Fred Barr. I represent the plaintiff in this case, Ms. Mary Jones. She has brought this case against Mr. John Smith. My client comes into court seeking money damages for injuries she sustained when she, a pedestrian, was hit and struck down by an automobile that was being driven by John Smith, the defendant in this case.

Mr. Barr goes on to tell the jury about some of the facts of the collision. Then he tells about Mary's progress after the accident. He outlines the evidence he expects to present. He asks the jury to keep an open mind. He also asks the jury to base its verdict solely on the evidence presented and the judge's instructions. Then Ms. Bright, John's attorney, makes her opening statement.

She begins,

My name is Sally Bright, and I represent John Smith. You have two basic questions to decide: what happened on May 7, and who is responsible for the injuries claimed by Mary Jones? When you hear all the facts, you will understand why Ms. Jones is not entitled to a judgment against Mr. Smith.

She goes on to tell the jury that she believes the evidence will show that the defendant was not speeding and was not negligent. Therefore, her client is not liable to the plaintiff for any money damages.

Presenting the Evidence

After the opening statements, Judge Fayre calls upon the plaintiff's attorney, Mr. Barr, to present his evidence. Mr. Barr knows that the burden of proof is on him and his client. That is, he must present evidence to the jury proving to its satisfaction that the facts of the case support the claim against the defendant. Mr. Barr must show that his client was injured, and he must also show that these injuries were the result of the negligence of John.

Evidence is a legal term meaning a matter of fact tending to prove, or disprove, another matter of fact at issue in the case. The two principal kinds of evidence are real and testimonial evidence. Real evidence refers to physical or tangible (touchable) things or documents. Photographs of the accident scene would be real evidence. Testimonial evidence refers to evidence given by witnesses (testimony). Usually, both real and testimonial evidence are used in a case.

During a trial, one attorney may object to evidence that the opposing lawyer wishes to introduce. The judge determines whether the evidence will be admitted. In other words, the judge decides whether the jury will be allowed to hear or consider the evidence. Sometimes the judge may refuse to allow evidence that is clearly inadmissible even without an objection from the other attorney.

The rules of evidence have been developed over many years. The concept underlying these rules is this: facts that tend to help a trier of fact (the jury) arrive at the truth should be admitted as evidence. Facts that do not aid the jury in the search for truth should be rejected as irrelevant.

In Mary's case, an example of relevant evidence would be Mr. Hawkeye's testimony about what he saw of the collision. Testimony by someone else about what Mr. Hawkeye said about the accident would not be allowed. Such testimony would be hearsay evidence. Hearsay evidence is considered unreliable, and it is generally not admissible. (There are some very important exceptions to the hearsay rule, however. An example would be the statement of a dying victim identifying the murderer.)

To aid the jury, Mr. Barr has prepared a large diagram of the scene of the accident. Such a diagram is not evidence. It is to help the jury understand the physical setting of the collision. Such visual aids are often used in the trial of accident cases, if the judge permits.

For his first witness, Mr. Barr calls Mary to the witness stand for direct examination. Mary is sworn in by Mr. Barr, with the following oath: "Do you solemnly swear (or affirm) that the testimony you are about to give in the case now pending before this court shall be the truth, the whole truth, and nothing but the truth, so help you God?" Mary answers, "I do." Mr. Barr then questions Mary:

Mr. Barr: Will you state your full name for the court and jury?
Ms. Jones: Mary Jones.
Mr. Barr: Are you the plaintiff in this case?
Ms. Jones: Yes, I am.
Mr. Barr: Are you seeking damages from the defendant, Mr. Smith, in this action?
Ms. Jones: Yes.

Mr. Barr then questions her about the accident. He asks her to describe what happened "in her own words." He asks what she recalls of the defendant's driving. Mary testifies about her injuries and her medical treatment. She describes her pain, discomfort, nervousness, and loss of sleep.

Mr. Barr then asks Mary to authenticate her medical bills and prescriptions. Authentication means that she identifies these documents. Then she testifies that these bills represent actual expenses. Mr. Barr asks that these documents be entered and accepted as evidence in support of Mary's claim for damages.
Now the defense attorney has the right to cross-examine Mary about her testimony. One purpose of cross-examination is to reduce the impact of the direct examination. Alternatively, cross-examination may be used to cast doubt on the truthfulness of the witness.

In cross-examination, the attorney may ask leading questions. These are questions phrased so as to suggest the answer the questioner wants. (They cannot be used in direct examination.)

Ms. Bright: It was dark that night, wasn't it?
Ms. Jones: Yes, but not so dark that I couldn't see.
Ms. Bright: But you didn't look up and down the street for approaching traffic before crossing the street, did you?
Ms. Jones: No.

Ms. Bright leads Mary to admit that she really didn't get a look at John or his car before the impact. Mary also admits that she started to cross the street as soon as the traffic light turned green. She did not first look for oncoming vehicles.

Mr. Barr may ask additional questions of the witness as soon as the defense is finished. This procedure is referred to as the redirect. It may be used by both attorneys. Both attorneys also may recall any witness to the stand during their presentations of evidence.

As his presentation of evidence continues, Mr. Barr reads to the jury portions of the physicians' depositions that he had taken earlier. Ms. Bright reads her cross-examination of the physicians to the jury. Judge Fayre advises the jury that the readings of the physicians' depositions are to be treated as evidence just as if the physicians were testifying in court.

Note that physicians are a kind of expert witness. Expert witnesses, because of their particular training or experience, can draw certain inferences or conclusions from the facts of a case. For example, a physician could give an opinion as to whether a collision could cause the injuries that were reported. The opinion of a non-expert witness on the same question, however, would not be allowed.

The eyewitness to the accident, Mr. Hawkeye, is then called as a witness by Mr. Barr. The witness is sworn in. Mr. Barr begins his direct examination of the witness. He establishes that Mr. Hawkeye was near the intersection of Druid Avenue and Decatur Road in DeKalb County on the evening of the accident.

Mr. Barr: At about what time were you there?
Mr. Hawkeye: Around 11 p.m. I was walking my dog.
Mr. Barr: Did you observe an automobile-pedestrian collision?
Mr. Hawkeye: Yes.
Mr. Barr: Didn't you observe the automobile traveling about 50 miles per hour?
Ms. Bright: Your Honor, I object to the question on the grounds that Mr. Barr is asking his witness a leading question. He is, in fact, suggesting the answer he wants.
Judge Fayre: Objection sustained.
Mr. Barr: I'll withdraw the question.

Mr. Barr goes on to question Mr. Hawkeye about what he actually observed of the accident. He asks what Mr. Hawkeye recalls about how John was operating his automobile.

On cross-examination, Ms. Bright begins as follows:

Ms. Bright: How far away were you from the collision you said you observed?
Mr. Hawkeye: About 30 or 40 feet.
Ms. Bright: You have no way of knowing, do you, the actual speed Mr. Smith was traveling just prior to this collision?
Mr. Hawkeye: No.

Ms. Bright continues to cross-examine. However, she cannot discredit Mr. Hawkeye's testimony, nor can she force him to contradict any of it.

At the close of Mr. Hawkeye's testimony, the plaintiff's case is completed. Mr. Barr says, "Your Honor, the plaintiff now rests."

Motion for Directed Verdict

After the plaintiff's case is completed, Ms. Bright says,

Your Honor, I move for a directed verdict in favor of the defendant on the grounds that the plaintiff has failed to prove each element of her case and a jury of reasonable persons could not differ in their verdict for the defendant.

(In other words, based on the plaintiff's evidence, a jury must find for the defendant.)

In effect, Ms. Bright is saying that the plaintiff hasn't proved her case. She is asking the judge to dismiss the case at this point. If the judge grants the motion, then the verdict (decision) is "directed" in favor of the defendant. The case would not go to the jury.

However, Judge Fayre says,

I cannot agree with your motion. The plaintiff has made out a case in negligence so far as a question of fact for the jury. Therefore I will overrule and deny your motion at this time. You may proceed with your side of the case.

Similarly, the plaintiff's attorney may ask for a "directed verdict" in favor of the plaintiff at the close of all the evidence. A directed verdict would be requested if it appeared that reasonable jurors would agree that the plaintiff had clearly proved his or her case.

Even if the directed verdict were granted, however, the jury would have to decide the issue of damages.

The Defense

The defendant's attorney, Ms. Bright, must discredit the evidence that the plaintiff has presented. Ms. Bright has a difficult tactical decision: she may call witnesses as part of the defendant's case, or she may choose not to put additional evidence before the jury. An attorney might decide to follow the second course, particularly if the new evidence would simply be a rehash of the plaintiff's evidence. Remember, the defendant's attorney has had a chance to cross-examine all of the plaintiff's witnesses. Weaknesses in the plaintiff's case can be shown through cross-examination.

Ms. Bright decides not to put up any evidence. In so doing, she will be allowed to make the opening and concluding final arguments to the jury. Usually, the plaintiff's attorney has the right both to go first and conclude in closing argument.

Closing Arguments

After all the evidence for both sides has been presented, the judge calls for the closing arguments. During this time, each attorney may argue his or her case to the jury. A closing argument is quite different from an opening statement. In the opening statement, an attorney usually outlines the entire case in a somewhat matter-of-fact manner. In closing arguments, attorneys comment directly on the evidence and witnesses. They argue the matters they feel have been proven by the evidence. They cannot, however, speak of anything that was not presented as evidence during the trial.

Ms. Bright has decided to "waive" her opening argument. She is hoping to impress the jury with her conclusion. She knows that will be the final argument the jury will hear.

Mr. Barr, in his closing argument, emphasizes that the plaintiff has proven three essential elements: (1) negligence on the part of the defendant, which was the (2) proximate cause of the (3) damages, for which the plaintiff should be compensated. He tells the jury that it cannot undo the wrong inflicted upon his client, the plaintiff. He says that the jury can do for the plaintiff what the law allows, however. That is, it can award money damages for the plaintiff's injuries.

In her closing argument, Ms. Bright states that the evidence clearly shows that the plaintiff is well recovered from any injuries she might have suffered from the accident. Even if the jury should find the defendant guilty of negligence, she says, it should award only a minimal sum for the plaintiff's general damages.

Charge to Jury

After Ms. Bright's closing argument, Judge Fayre charges the jury-that is, he instructs the jury about the law that is to be applied to the facts of the case. In a personal injury case, the judge's instructions are usually lengthy. The judge explains the law on matters such as who has the burden of proof. Judge Fayre also instructs the jury about the law of negligence, the elements of a negligence action, including proximate cause, and the law relating to damages. The judge explains the need for a unanimous verdict. "Verdict," he says to the jury, "simply means 'truth.' And that is what you must seek in your very private deliberations."

Jury Deliberations and Verdict

As soon as the jurors retire to the jury room, they elect a foreman. Mr. Pierson is selected. Then the jurors consider the questions before them. In the Jones v. Smith case, the jury must decide two questions:

  • Were the plaintiff's injuries the results of John's negligence?
  • If so, what amount of damages should the plaintiff receive?

According to Georgia law, the proper measure of general damages as related to mental pain and suffering is determined by "the enlightened conscience of fair and impartial jurors."

In deliberating, jurors discuss the evidence presented. They consider the points made by the attorneys. If they have a question about the law or how it is to be applied in the case, the bailiff is notified. The bailiff informs the judge. The jury then returns to the courtroom to receive further instructions from the judge if the judge feels that it is necessary.

To aid in their deliberations, the jurors have the documentary evidence introduced during the trial with them to examine, including the medical bills and prescriptions that Mr. Barr had Mary authenticate while she was on the witness stand. This jury may have copies of the pleadings (the complaint and answer) to review. It is up to the judge as to whether to send the pleadings out with the jury.

The jurors have trouble reaching a unanimous verdict on both questions. Because the jury verdict must be unanimous, jurors on the opposing sides try to persuade the others to their viewpoint. Sometimes jurors never agree. If a unanimous verdict is impossible, a mistrial is declared by the judge. Then the case would have to be tried again before another jury.

In the Jones v. Smith case, the jury finally reaches a unanimous decision. The jury foreman, Mr. Pierson, calls for the bailiff. The bailiff tells the judge that the jury is ready to return to the courtroom. After both parties are present, the jury is called into the courtroom.

When the jury is again seated in the jury box, Judge Fayre asks, "Have you reached a verdict?" The jury foreman responds, "We have, your honor." The foreman hands a written verdict, signed by all the jurors, to the judge.

The judge asks the plaintiff's attorney to publish the verdict, meaning read it aloud in open court. The verdict reads, "We the jury find in favor of the Plaintiff in the sum of $75,000 on this third day of July, 1997. Signed, Patrick Pierson, foreman."

Outcome of Case

Thus, Mary has won a verdict for damages. When the plaintiff prevails (wins), the court will order whatever action is necessary to enforce the obligations of the defendant to the plaintiff. In cases such as Jones v. Smith, the defendant would be ordered to pay the plaintiff the amount of money that the court has declared to be due.

What if the defendant does not pay? The plaintiff may then take legal action to seize property owned by the defendant that could then be sold to satisfy the defendant's obligation to the plaintiff.

In this case, the judgment will be paid by John's insurance company. It will pay up to the amount of his liability insurance coverage. However, the judgment would not be paid right away if the case were appealed by John and his attorney.

Although the jury awarded her $75,000, Mary will not receive all of that money. The fees for her attorney, which may be from 25 percent to 40 percent of the award, will be deducted. Other legal expenses, such as costs of depositions from witnesses, will also reduce the amount Mary receives.

In other cases, the court may require the defendant to perform a particular legal duty. For instance, the defendant may be requested to deliver goods under the terms of a contract. If the defendant does not obey such an order, he or she may be held in contempt of court. In that case, the defendant would be punished by fine or jail until he or she obeys the order. Sometimes a court will simply declare the rights and duties of the parties, as in a divorce, when the judge orders that the marriage be dissolved.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jun 15, 2005