INTRODUCTION
Often, when people hear the word “litigation,” they tend to picture a courtroom—with a judge, jury, lawyers, and witnesses all playing their parts. And there’s nothing wrong with that picture. Trials are, after all, what gets featured in TV shows and movies. That, however, is only one meaning of the word. The word “litigation” describes both a specific event, such as an actual trial or arbitration, as well as an entire process, such as what occurs from the time a lawsuit is filed all the way through an appeal. In this article, the word “litigation” means the latter—the entire court process.
This article is designed to walk you step-by-step through the litigation process in a typical civil litigation case. This article has something for everyone. If you’re the kind of person who likes to look at the big picture, you might skip the glossary featured in the next article and just read this one. In any event, there are a few things you should remember as you read this article:
- while arbitration is certainly a type of litigation (usually resulting from a private contract where the parties have agreed to arbitrate disputes between them), this article will not focus on the arbitration process. Rather, this article focuses exclusively on the civil litigation process in state courts throughout California. This article, therefore, will not address litigation in the federal courts, including bankruptcy or patent courts.
- this article is by no means a complete explanation of the litigation process, and it should never substitute for competent legal advice from an experienced business litigation attorney.
- litigation is a highly complex process that requires legal expertise. If you need to file a lawsuit, or you’ve been named as a defendant in one, you need to contact an experienced business litigation attorney immediately. The clock starts ticking on various deadlines once you’ve been served, so time is of the essence.
LITIGATION IS A PROCESS
The litigation process can be a long one. From start to finish, most litigation in California takes at least a year to run its course, and that’s just to an initial trial. If you account for post-trial motions and appeals, the process can take several years. And none of that takes into account the effect that the COVID-19 pandemic has had on the court system.
The Pre-Litigation Stage
Often, before filing a lawsuit, many plaintiffs will try, either on their own, or with the aid of their attorneys, to resolve their disputes informally by sending written demands to the other side. A “demand letter” is often the first salvo in what may become litigation. We’ve included this as part of the litigation process, even though it technically isn’t, both because of its importance in resolving a lot of disputes before forcing the parties to expend large sums of money, and to stress the fact that litigation should always be a last resort.
Written demands take many forms, from a demand for payment, to a cease and desist letter to someone who is infringing on a plaintiff’s trademark or patent. While sometimes required by contract or statute, they are almost always worth while, as many cases tend to settle before a lawsuit gets filed. Sometimes, just the act of hiring a lawyer to write a demand letter (and depending on the subject matter, this is sometimes called a “cease and desist letter”) is enough to compel compliance.
Another popular pre-litigation means of resolving disputes is alternative dispute resolution, or “ADR.” ADR generally takes one of two forms:
- arbitration; or
- mediation.
Arbitration
Although this article will not cover the arbitration process in any detail, you should understand at least the very basics. The arbitration process is comparable to the litigation process that takes place within the court system. Arbitrations are comparable to trials, and the arbitration process is therefore comparable to the court system. Evidence is gathered, presented, and weighed, and witnesses can offer testimony. The arbitrator, taking the place of the judge and jury, evaluates the evidence presented and makes a decision regarding liability and damages. In the case of binding arbitration, the arbitrator’s decision is final and very difficult to appeal. And most importantly, the arbitrator’s final ruling can be filed with the court as a final judgment.
Mediation
Unlike arbitration, mediation is just another word for formal settlement talks. It does not involve any decision by an arbitrator as to the facts or law of the case, and it does not result in any decision, ruling, or judgment. Rather, the parties will typically select a mutually agreeable mediator (often a retired judge or experienced attorney) and provide the mediator with confidential briefs outlining the facts and law supporting their cases.
At the mediation, the parties will typically be placed in different rooms, with the mediator floating between the parties and attempting bring each side closer together. Good mediators are skilled at highlighting the weaknesses of each party’s case and pointing out the risks associated with litigation. In the end, whether the dispute is resolved at mediation is entirely up to the parties and their attorneys.
Sometimes, mediation is required, such as when a contract mandates that the parties mediate a dispute before proceeding with litigation, or a statute requires that the parties attempt mediation before resorting to court action, but most of the time, participation is purely voluntary. So, while mediation costs money—the parties have to pay the mediator and their respective attorneys—if there’s a reasonable chance that the case might settle, it’s almost always worth pursuing.
But if pre-litigation demands or mediation don’t work, then going to court might be the only viable option.
FILING THE LAWSUIT
The litigation process officially commences when the plaintiff files a complaint. This is what people are talking about when they say that they “filed a lawsuit.”
The Complaint
A “complaint” is a legal word for the lawsuit itself. A well crafted complaint will contain a clearly written recitation of the relevant facts of the case, one or more discreet causes of action (or claims), and a “prayer” for relief—the latter being a list of things the plaintiff is demanding from the defendant (e.g., money) or the court (e.g., injunctive relief).
A well crafted cause of action will make sure to include all the necessary elements that the law requires. For example, to properly state a cause of action for breach of contract, a complaint must allege: (i) the existence of a contract with the defendant; (ii) plaintiff’s performance or excuse for non-performance; (iii) the defendant’s breach of the contract; and (iv) resulting damages. If a plaintiff alleging breach of contract fails to plead all of those elements, the cause of action can be thrown out by the filing of a motion or demurrer by the defendant, and if a plaintiff fails to prove any of those elements at trial, the plaintiff should theoretically lose.
Depending on the type of lawsuit, you’ll find a variety of different types of causes of action. For example, in a lawsuit involving one or more businesses (i.e., a business litigation case), you’ll often see causes of action for breach of contract, fraud, intentional or negligent misrepresentation, breach of fiduciary duty, interference with contract or with prospective business advantage, unfair competition, negligence, etc. Of course, that doesn’t mean that other types of litigation won’t feature the same causes of action. For example, in lawsuits between homeowners and their HOAs, you’ll often find causes of action for breach of contract, negligence, fraud, and breach of fiduciary duty (just like you might see in business litigation cases). But you’ll also often see causes of action that are not normally present in corporate lawsuits, such as nuisance or enforcement of equitable servitudes. And in other types of real estate cases, you might find causes of action for quiet title, trespass, or injunctive relief.
Regardless, the causes of action a plaintiff alleges (or, as is discussed below, that a cross- complainant alleges) is the most important part of the complaint because those claims form the basis for the specific relief sought by the plaintiff.
The Cross-Complaint
Sometimes, a defendant has causes of action of its own that it wants to allege against the plaintiff. In such cases, the defendant can file a cross-complaint against the plaintiff. A cross- complaint is virtually identical to a complaint (in that it contains a recitation of relevant facts, one or more discreet causes of action, and prayer for relief), except that it is filed in the same lawsuit as plaintiff’s complaint.
Both the complaint and the cross-complaint will be tried together, at the same time, with the same judge, and where applicable, with the same jury. When a cross-complaint is filed in a case, the defendant is referred to both as a “defendant” and a “cross-complainant,” and the plaintiff is referred to both as a “plaintiff” and a “cross-defendant.”
RESPONDING TO THE LAWSUIT
Typically, within 30 days of a complaint’s service on a defendant, the defendant must file with the court a formal response to the lawsuit. Depending upon the circumstances, there are several such available responses. Such responses might challenge the appropriateness of the jurisdiction or venue or legal sufficiency of the complaint. Ultimately, however, if a complaint survives such challenges, the defendant will eventually have to file a formal “answer” to the claims alleged.
Motions Challenging the Complaint
There are a variety of ways a defendant may challenge a complaint. For example, if a defendant contended that service did not occur as required by law, (e.g., nobody attempted personal service), a defendant might file a motion to quash service. Or if a defendant believed that the lawsuit should have been filed in a different venue (e.g., because of a venue clause in a relevant contract), such a defendant might file a motion to change venue.
Demurrer
The most common means of challenging the sufficiency of a complaint is the demurrer. A demurrer is a written response to a complaint that basically states that even if everything alleged in the lawsuit is true, there is still no legal basis to support the claims alleged. In short, when a party files a demurrer to a complaint or cross-complaint, the party is saying “So What?” to one or more of the claims asserted.
In terms of a demurrer, “challenging the sufficiency of a complaint” does not mean weighing the facts or evaluating any evidence. In fact, for the purposes of a demurrer, the court must accept as true all facts alleged in the complaint—no matter how easily the other party can prove that the claims are false. In short, for purposes of a demurrer, the court cannot weigh any evidence or make any determination about the truthfulness or falsity of an allegation. A demurrer, therefore, is not the place to assert that the plaintiff is lying or that something did or didn’t happen.
There are two types of demurrers: (i) a general demurrer; and (ii) a special demurrer. A general demurrer can be filed if the complaint fails to state facts sufficient to properly constitute a viable cause of action, or if the court lacks subject matter jurisdiction.
For example, in California, the statute of limitations for breach of most written contracts is four years (there are exceptions, such as in the case of a negotiable instrument, like a promissory note, where the statute of limitations is five years). Suppose a plaintiff alleged that the defendant breached a contract on, say, May 25, 2013. And suppose that the plaintiff filed the complaint on June 10, 2017. The defendant could file a general demurrer challenging the sufficiency of the cause of action for breach of contract because on its face, it failed to state a viable cause of action. In other words, even if everything the plaintiff alleged was taken as entirely true (e.g., the parties entered into a contract, the defendant didn’t pay as agreed, and as a result the plaintiff was damaged), the plaintiff wouldn’t be entitled to any relief as a matter of law because of the missed statute of limitations.
With respect to an example of a general demurrer based on subject matter jurisdiction, suppose a complaint was filed in the superior court alleging a breach of an agreement reached during the pendency of a divorce proceeding. A defendant might be challenge such a complaint on the grounds that the case belongs in the family court instead of the superior court. Such a challenge would take the form of a general demurrer.
A special demurrer, on the other hand, can take many different forms. For example, if a complaint is written so poorly that a defendant cannot reasonably respond, a special demurrer for uncertainty would be appropriate. Likewise, if the plaintiff lacked legal capacity to sue, a defendant could file a special demurrer.
After a demurrer is filed, at which time the court sets a hearing date for the demurrer, the plaintiff is given an opportunity to file an opposition to the demurrer in which the plaintiff can present legal arguments demonstrating why the court should deny the demurrer. The defendant gets the last word, however, because the defendant is permitted to file a reply to the plaintiff’s opposition.
At the hearing, the judge will, having read the demurrer (one would hope), plaintiff’s opposition, and the defendant’s reply, either sustain the demurrer (in whole or in part), or overrule (i.e., deny) it. If the judge sustains the demurrer, the court will usually do so with leave to amend and give the plaintiff time to file an amended complaint to “fix” the defect(s).
Sometimes, however, when the defect is of a type that cannot be reasonably fixed (e.g., a statute of limitations issue, or the plaintiff has already failed to properly amend the complaint in previous demurrers), the judge will sustain a demurrer without leave to amend, which means that the relevant cause(s) of action is/are permanently thrown out. For the most part, however, demurrers are generally sustained with leave to amend, and many plaintiffs manage to “fix” their complaints sufficiently to overcome further demurrers.
Although less common, a plaintiff can demurrer to a defendant’s answer.
Motion to Strike
A defendant can also file a motion to strike any “irrelevant, false or improper matter” contained in the complaint. For example, if the complaint contains a demand for attorneys’ fees but there is no contractual or statutory basis for such fees, a defendant can file a motion to strike that demand. A plaintiff can, in some cases, also file a motion to strike all or part of an answer.
There is another type of motion to strike commonly referred to as an “anti-SLAPP,” but that is beyond the scope of this article. You can, however, learn a little bit about what a SLAPP (and anti-SLAPP) is in my next article, where I provide plain English definitions of various words and phrases used in litigation.
The Answer
In cases where a defendant chooses not to challenge a complaint, or after a court has granted the plaintiff leave to amend the complaint and the defendant does not wish to issue any further challenges to the complaint’s sufficiency, the defendant will file an answer to the lawsuit.
Except in the case of a verified complaint (a complaint whose allegations are alleged under oath), an answer consists of a general denial and various affirmative defenses. A general denial is exactly what it sounds like (a denial), and typically consists of a single sentence that states that the defendant (or cross-defendant) “generally denies each and every allegation stated in the complaint” (or cross-complaint). While antiquated and formulaic, a general denial is a necessary part of every answer.
After the general denial, most answers contain one or more (typically many more) affirmative defenses. Affirmative defenses are specific defenses that a defendant or cross-defendant will include in an answer that serve to provide a defense and/or mitigation to one or more of the causes of action alleged. And, as was mentioned above, because the law requires a defendant/cross-defendant to allege some facts supporting each affirmative defense, simply listing affirmative defenses with no factual context can result in the other party demurring to the answer.
Once the answer is filed, the case is considered “at issue,” and the parties generally move on to gathering evidence. The most common way that parties gather evidence is via the discovery process.
CONDUCTING DISCOVERY
An integral part of the litigation process is the ability of the parties to gather information and evidence necessary to prove their claims or defenses. The means of gathering such information is called the discovery process, and the process as a whole can be broken down into two primary areas: (i) written discovery; and (ii) live testimony given under oath (e.g., depositions).
Written Discovery
Written discovery itself takes several forms, and depending upon whether or not you are seeking information from another party to the lawsuit, or from a third party, you might choose to serve special interrogatories, form interrogatories, requests for admissions, subpoenas, or requests for production of documents. You can learn about what differentiates each of those types of written discovery in the extensive litigation glossary featured in my next article.
Focusing on discovery propounded on another party, once such written discovery is served on the other side, the answering party typically has 30 days to serve formal responses to the requests. Such responses generally include any applicable objections, and must always include a signed verification. Assuming the responding party is not behaving unethically by playing discovery games, the propounding party can expect to receive answers to the questions it posed and copies of documents requested.
Of course, there are certain privileges that protect the disclosure of some documents and information, such as those that fall under the attorney-client privilege. There are other privileges, such as the doctor-patient or priest-penitent privileges, but those are beyond the scope of this article. While most documents/information aren’t protected by any applicable privilege, sometimes the parties to a lawsuit demand some protections related to certain documents/information, such as those involving trade secrets or confidential information. You’ll typically see these types of documents in a business litigation case.
In such cases, prior to disclosure of the applicable documents/information, the parties might require everyone to sign a protective order limiting dissemination of the documents/ information at issue. And in some cases, the parties can even agree that certain documents are to be for the attorneys’ eyes only, thus protecting certain trade secrets or confidential information from disclosure to the other parties.
Unfortunately, all too frequently, attorneys engage in gamesmanship during the discovery process. They do this to thwart the propounding party’s efforts to obtain documents/information that might prove damaging to the responding party’s claims or defenses. When a party engages in that type of discovery gamesmanship, the propounding party must choose to either let the issue go, or file a motion with the court seeking to compel the responding party’s compliance. If the court rules in favor of the propounding party—say, for example, by ordering the responding party to produce documents or respond clearly to the questions posed—then the Code of Civil Procedure requires that the responding party be sanctioned (i.e., assessed a monetary fine) for its conduct.
Taking Depositions
Another very effective and common tool in the discovery arsenal involves compelling a witness to personally appear to testify at a deposition. During the deposition, the attorney taking the deposition is able to ask the witness a variety of questions relevant to the case while the witness is under oath and subject to perjury laws. A court reporter is always present to take down every word that is said, and some parties even choose to videotape certain depositions for use at a hearing or at trial.
Depositions can be very dramatic at times, which is why they are often featured in legal shows, and which is why they are often a lot of fun to conduct (or defend). Depositions lend themselves to drama for a variety of reasons. First, unlike in the case of written discovery, the attorney taking the deposition gets to be face-to-face with the witness. Also, since all parties have the right to attend all depositions in the case, there are often opposing parties all present in the same room during a deposition.
There is also another reason why depositions can be exciting. While attorneys defending a witness at a deposition routinely put objections to certain questions on the record, the law severely limits the instances where it is appropriate for a witness to refuse to respond to a question posed (or more commonly, where an attorney instructs his or client, the witness, not to respond). In other words, in most cases, while an attorney is free to put his or her objections on the record, the witness must still respond to the question posed. This makes for some very dramatic exchanges.
In any event, taking a deposition gives the deposing party the opportunity to question a witness under oath to find out what he or she knows, have the witness identify and authenticate documents, preserve or lock in a witness’s testimony, and to provide some insight into how the witness will look and sound at trial (i.e., whether the witness is believable, likable, tells a coherent story, etc.).
PRE-TRIAL MOTIONS AND SETTLEMENT
Between the time a complaint is filed and the end of trial, there are various types of motions that a party can file. What is a motion?
Motions
Simply put, a motion is the procedural process by which a party can ask the court for an order, ruling, or instructions regarding discreet aspects of the case. A motion is, in fact, the only mechanism prior to trial that allows the judge to make a substantive factual/legal decision about the case. Usually, motions are filed to: (i) narrow one or more issues in the case (e.g., a motion to strike or demurrer); (ii) compel a party to do or not do something (e.g., a motion to compel compliance to discovery propounded or a motion for injunctive relief); or (iii) to dispose of all or part of a case (e.g., motion for summary judgment).
Dispositive motions are motions that dispose of some or all of a particular party’s claims or defense. For example, a motion for summary judgment—sometimes referred to as an MSJ—seeks to have the court decide the case without the need for a trial because there are no factual issues left to decide (i.e., there are no material facts in dispute).
Some motions happen to fit into more than one category, depending upon how the judge rules. For example, a motion for judgment on the pleadings can narrow the issues of a case by forcing the plaintiff (or cross-complainant) to more carefully plead a cause of action by adding additional facts, but if the judge grants a motion for judgment on the pleadings without leave to amend, the court will have disposed of part of the case permanently.
There are specific rules regarding length, timing, notice, service, and contents associated with the various types of motions available to the parties in a lawsuit, and the judge has wide discretion in whether to grant or deny a motion filed by a party. Likewise, the filing of certain motions carry with them consequences that need to be considered. For example, if a party files a motion to compel and loses, the court can sanction that party for bringing the motion if the court determines that there wasn’t sufficient justification to bring the motion. Determining whether to file a particular motion, therefore, depends upon a variety of factors and should only be done in consultation with a party’s attorneys.
Once a case is ready to proceed to trial, the parties might choose to file evidentiary motions otherwise known as motions in limine. Motions in limine are motions filed to prevent certain evidence (documents or testimony) from being presented during trial. The obvious public policy behind motions in limine is that once the bell’s been rung, you can’t un-ring it. For that reason, motions in limine become far more important when the case is going to be decided by a jury rather than by a judge (i.e., in a jury trial instead of a bench trial) because juries are more easily swayed by irrelevant material or emotion than a judge—at least that’s the theory. So, for example, if the plaintiff had reason to believe that the defendant was going to try to introduce evidence of the plaintiff’s bad conduct ten years earlier, the plaintiff might file a motion in limine to exclude any reference to such “bad conduct.” That way, the plaintiff won’t have to risk the jury hearing about it.
Motions in limine are also frequently filed to prevent a party from introducing documents that weren’t turned over during discovery (assuming that such documents were requested). That way, a party doesn’t get to benefit from its discovery gamesmanship by using documents it withheld.
Settlement
Cases can settle at any time before or during the pendency of a lawsuit. When a lawsuit is settled, the parties agree on a variety of things, the most important of which is the general and specific releases. The releases are important to ensure that a party is not able to refile another case based on the same set of facts. The actual details of a settlement vary greatly, but many include the payment of money from one side to another, as well as a whole host of other provisions (e.g., confidentiality, non-disparagement, attorneys’ fees and costs, etc.).
TRIAL
Trials are the most recognizable part of the litigation process. It’s at the trial that TV and movie audiences are used to seeing an attorney doggedly questioning a witness only to have the witness suddenly make a startling admission. In movies and television, trials are always portrayed dramatically or nobody would want to watch them. And while many trials have dramatic moments, for the most part, they are very different from what you’re used to seeing on the big screen. The trial is itself a mini process that begins anywhere from months to weeks prior to the first day of trial.
Pre-Trial Preparation
Good trial attorneys treat all of their cases from the very beginning as if each case was going to eventually proceed to trial (despite the fact that 95% of civil cases never go to trial). That’s not, however, the “trial preparation” discussed here. Rather, what this article means when it talks about “trial preparation” are the tasks that need to be completed when it looks like the trial is actually going to happen.
In the weeks leading up to trial, each party’s attorneys will be hard at work preparing for the trial by conducting detailed analysis of all documents relevant to the case, drafting witness outlines, preparing opening statements, issuing subpoenas, preparing and filing motions in limine, and otherwise engaging in myriad activities that need to be completed. For example, court rules require that the parties work together to create a joint statement of the case, a joint exhibit list, a joint witness list, and jury instructions (if there’s a jury). Together, those tasks take dozens of hours, and partially explain why litigation is so expensive (and why most cases settle before that stage).
Trailing
On the date designated for trial, the parties and their attorneys will meet at court to announce themselves ready to proceed with trial. But that doesn’t necessarily mean that the trial will begin that day. Rather, it is quite common for a case to trail—meaning that the parties are sent to wait for another judge to pick up the case because the designated trial judge is otherwise tied up (e.g., in the middle of another trial).
This process—referred to as “trailing”—can last for several days before a new trial date is officially announced. Some counties in California have rules that require the parties to remain in the courthouse during business hours while their cases are trailing (at least for a few days), presumably to give another judge who has time to hear the case a chance to do so, but really to help facilitate last minute settlements.
If, after a few days, another judge doesn’t pick up the case, the parties are provided with a new trial date (usually several weeks in the future) and an order to return on the newly-designated date.
At Trial
In discussing the trial process in this article, you should assume that the parties opted for a jury.
Last Minute Hearings
Assuming that a judge picks up the case, or the judge assigned to you is ready to proceed when your case is called for trial, the judge may then proceed to hold a hearing on the motions in limine the parties filed, as well as take care of any other issues that may need to be resolved prior to starting the trial. The timing of these and other things might differ from county to county or courtroom to courtroom (so, for example, the motions in limine might have been addressed a week or two prior to the start of trial).
Jury Selection
If either party requested a jury trial, then a designated number of potential jurors will be selected (i.e., the “jury pool”) and the jury selection process will start. Each of the jurors in the jury pool will have already provided certain information, including their names, occupations, marital status, and the occupations of their spouses. Copies of their responses are then provided to the attorneys on both sides.
Random members of the jury pool will be selected to sit in the jury box. At that point, the potential jurors will be questioned by the judge in a process called voire dire to determine whether or not they have any personal hardships that should exclude them from having to serve on the jury (e.g., they care for an elderly parent or sick child, or they have a planned vacation starting during the trial, etc.), or whether or not they have any personal biases that will prevent them from deciding the case objectively.
After the judge finishes questioning the jurors, the attorneys on both sides are then given an opportunity to request that one or more of the potential jurors be excluded “for cause.” For cause generally means that a potential juror is either incompetent or otherwise incapable of serving (this is exceedingly rare, by the way), or has an implied or actual bias. If the judge agrees with the attorney’s argument, such potential jurors will be excused.
After the “for cause” challenges are addressed, if any, the attorneys get to ask the jurors questions of their own. Each attorney starts off with a certain number of peremptory challenges giving them the right to exclude particular jurors without having to demonstrate bias, or for that matter, give any reason at all. The reasons an attorney might exercise a peremptory challenge on a particular juror can be as random as the way a juror is looking at an attorney or party, to as specific as the way a juror responded to a question posed earlier.
Such voire dire by the attorneys is supposed to ensure that the jurors don’t have any specific biases against a particular party or a group in which a party belongs (e.g., social, political, economic, you name it). However, in practice, the voire dire process represents a powerful mechanism for attorneys on both side to exclude jurors that a party simply doesn’t think will be “friendly” to their case.
Once both sides are satisfied with the 12 individuals sitting in the jury box (or if both sides have used all of their peremptory challenges), those 12 people are sworn and empaneled as the jurors in the case. At that point, the judge will determine how many alternate jurors the case needs, and that number of individuals will be selected from the jury pool to come up to the jury box. Those potential alternates will then be subject to the same voire dire process that the empaneled jury experienced, and each of the attorneys is given additional peremptory challenges (equal to the number of alternates there will be in the case) to use during the voire dire process for the alternates.
So, for example, if the judge declares that there will be three alternates, then each attorney will be given three new peremptory challenges. Such peremptory challenges can only be used on the individuals called as potential alternates, not on the 12 individuals already empaneled. And once the alternates are sworn and empaneled as alternates, the remaining members of the jury pool are excused, and the trial can begin.
Arguments, Witnesses, Evidence, and the Verdict
Once the jury is selected and all the housekeeping business is completed, the part of the trial that everyone is more familiar with begins. This process generally starts with each party presenting their opening statements.
Opening Statements
The opening statement is one of those aspects of trial frequently displayed in movies and on TV. Although these fictional versions are typically significantly shorter than the real thing, they give you a good idea of what the opening statement is intended to do—present the jury with the “story” of the case and inform them of what to expect in terms of the evidence to be presented. Experienced trial attorneys will ask the judge to exclude all witnesses (except for parties to the case) during opening statements.
Examination and Cross-Examination of Witnesses
After both sides finish with their opening statements, the plaintiff will be invited to present its case. This starts with the plaintiff calling its own witnesses and conducting what are called direct examinations. After the plaintiff finishes a direct examination of a witness, the defendant is given the opportunity to cross- examine the witness. During cross-examination, the defendant is given a little more leeway in the way it asks questions, the details of which are beyond the scope of this article. After the defendant finishes its cross-examination, the plaintiff may engage in a re-direct examination, followed sometimes by the defendant’s re-cross.
During the defendant’s case-in-chief (which defendant presents after the plaintiff has rested), the same process occurs, except that the parties are reversed. When both the parties have completed presenting their cases, they will announce that fact by “resting.”
Motions During Trial (e.g., Motion for Mistrial, Nonsuit, or Directed Verdict)
There are various types of motions that a party can bring during the trial. One of these is a motion for mistrial. A motion for mistrial is typically brought when there’s been serious misconduct on the part of the judge, an attorney, a party, or a juror.
Another type of motion that is often brought during trial is the motion for nonsuit. A motion
for nonsuit is brought by the defendant after the plaintiff has rested its case, but before the defendant has commenced presenting its case. A motion for nonsuit is similar to a demurrer in that it asserts that even if the jury assumes the truth of the facts presented, as a matter of law, plaintiff didn’t present sufficient evidence to prove its case. Defendants are rarely successful in bringing motions for nonsuit because plaintiff’s have a statutory right to reopen their cases to introduce further evidence for the purpose of shoring up any defects highlighted in a motion for nonsuit.
A party can bring a motion for a directed verdict after both sides have rested their cases. A motion for a directed verdict is pretty much what it sounds like: a motion for the court to deliver a specific verdict by bypassing the jury. The purpose and grounds for granting a motion for a directed verdict are similar to those of a demurrer and motion for nonsuit.
If there’s a cross-complaint involved, then the process described above will apply to the cross- complaint. Regardless, once each side finishes presenting its respective case, each will “rest.”
Closing Arguments & The Jury
Once the parties finish putting on their cases/defenses, and all the trial-related motions have been filed (if any), the lawyers get a final opportunity to talk to the jury. This occurs during closing arguments. Like opening arguments, closing arguments are frequently portrayed in movies and TV because they represent the second occasion that the lawyers get to talk directly to the jurors to convince them to find in favor of their clients. After those are done, the judge will provide the jury with instructions and then excuse them to begin their deliberations.
Closing Arguments
Once the parties rest their cases, they have the right to give their closing arguments. The parties have a lot more leeway in closing arguments than they did in the opening statements. For one thing, subject to certain limitations, parties can make legal arguments during a closing argument, but that’s not the case during an opening statement. Parties can also attack the credibility of the other side’s witnesses or point to specific weaknesses or broken promises by the other side (e.g., “You heard them promise to show you who committed the breach, but they didn’t do that, did they?”).
The plaintiff presents its closing arguments first, followed by the defendant. After the defendant finishes giving its closing arguments, the plaintiff is given the opportunity to present a rebuttal closing argument, which is limited solely to rebutting what the defendant raised in its closing argument.
Jury Instructions
After closing arguments are finished, the judge will read aloud to the jury a set of jury instructions intended to explain the applicable “laws of the case.” Most of the jury instructions are preprinted and numbered (e.g., CACI), while some are written by the parties (e.g., “special” instructions). The purpose of the jury instructions is to aid the jurors in properly applying the law to the facts presented in the case. So, for example, if the case involves a cause of action for breach of contract, there will be a jury instruction explaining what the plaintiff must prove (i.e., the elements) to win on that claim.
One of the jury instructions always read to the jury is the instruction on the appropriate burden of proof, which in civil cases is known as the preponderance of evidence standard. To meet the preponderance of evidence burden, a plaintiff (or cross-complainant) needs to prove that it is more likely than not that something did or didn’t happen. In other words, there’s slightly more than a 50% chance that the plaintiff is right, then the plaintiff has met the preponderance of evidence standard. This is, of course, a much lower burden than the one necessary to convict someone of a crime (where the standard is beyond a reasonable doubt).
After the judge finishes reading the jury all of the approved jury instructions (which the parties each submitted previously outside of the presence of the jury), the judge will instruct the jurors where they need to go to begin deliberations.
Jury Deliberations
Typically, jurors are sent to a jury room (e.g., a conference room adjacent to or near the courtroom) to deliberate. Jurors are the only people who are permitted in the jury room during deliberations. Once a jury arrives in the jury room, their first order of business is to select a foreperson (or presiding juror). The foreperson’s job is to preside over the deliberation process and make sure that the deliberations are carried out as instructed by the judge. The foreperson is also responsible for counting the votes and signing the verdict form.
Jurors are not permitted to think about things on their own. In fact, the law requires that all the jurors remain together under the supervision of a deputy or court officer until they are excused to go home (either for the day, or after the case is over). In addition, as most people are already aware from watching TV and movies, jurors are not supposed to talk about the case to non- jurors. A lot of people, however, don’t know that it goes further than just prohibiting a juror from not talking to their family or friends about the case they’re sitting in judgment on. Jurors are actually prohibited from speaking to each other about the case except during deliberations involving the entire jury.
Jurors are entitled to take only a few things with them into the jury room during deliberations. Such items include the notepads assigned to them at the beginning of the case, as well as all the papers that were received into evidence during the trial. Interestingly, because most complaints, answers, and motions are never offered or received into evidence during trial, jurors do not have access to those documents during deliberations. Nor are jurors allowed to have deposition transcripts with them in the jury room.
Sometimes jurors have questions about specific evidentiary issues or about the meaning of a jury instruction. In those cases, the jurors will alert the deputy supervising them, who in turn will alert the judge. The judge will then notify the parties (and their attorneys, of course), after which the jurors will be invited back into the courtroom to ask their questions in the presence of the parties and the attorneys.
The Verdict
When the jury has reached a decision, they will announce their decision in the form of a verdict. To reach a verdict in civil cases, 3/4 of the jurors (i.e., 9 out of 12) must agree.
Jurors are provided with a verdict form by the parties. The verdict form requires them to reach one of two types of verdicts: (i) a general verdict; or (ii) a special verdict. A general verdict form has the jury deciding generally on all the issues of the case in favor of the plaintiff or the defendant (or cross- complainant or cross-defendant). General verdict forms are more simple to work with.
A special verdict, on the other hand, has the jury making decisions on the facts of the case (i.e., what happened), leaving the judgment itself to the judge. So, for example, a special verdict form might ask questions like “Did the defendant breach the contract by….. ?” followed by an answer of “Yes” or “No” by the jury, without ever saying who should win or not. The special verdict form is favored in more complicated cases.
AFTER TRIAL
Once the jury has rendered its verdict, the “trial” part of the trial will be over, and new post-trial phase will begin.
Post-Trial Motions
After the jury has rendered its verdict and have been dismissed, the parties have a chance to file a variety of post-trial motions. The two most common ones are a motion for judgment notwithstanding the verdict (otherwise known as a “JNOV”) and a motion for a new trial. The specifics regarding those two post-trial motions, as well as a variety of others (e.g., motion to vacate judgment, motion to stay enforcement, motion to correct a clerical error, etc.) are beyond the scope of this article.
The Judgment
The verdict is not the end of the road. After a verdict is entered into the court’s minutes by the court clerk, the prevailing party will present a judgment to the court mirroring the verdict. Only after the judge signs the judgment and the court clerk stamps it (i.e., “enters” it) will there be a formal judgment in the case.
Appeal
Ultimately, if a party isn’t happy with all or part of a verdict, subject to a variety of rules and strict timelines, a party may appeal a verdict to have it overturned. The appellate process, however, is beyond the scope of this article.