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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
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. 

Questions of fact concern the facts of the case. 

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.

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.

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
Defense
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)
Defense
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)

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.

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.

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.

Presenting the Evidence

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 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.)

The plaintiff's attorney may ask additional questions of the witness as soon as the defense is finished. This procedure is referred to as the redirect.

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.

Motion for Directed Verdict

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

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 must discredit the evidence that the plaintiff has presented. 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.

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.

Charge to Jury

The judge 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.

Jury Deliberations and Verdict

As soon as the jurors retire to the jury room, they elect a foreman.

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. 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.

Outcome of Case

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 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 www.cviog.uga.edu 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