Overview Of Personal Injury Lawsuit Part Vii Trial
Going to trial is one of the most exciting and stressful times for a trial lawyer and his client. Both have “lived” with the case for months or years. The client may still be experiencing pain and other symptoms from the injury that prompted the lawsuit and may in fact be at trial to get the money that will allow him or her to have the surgery or other necessary procedure that alleviates the pain. The client’s fate is now in the hands of the six individuals who make up the jury and the client is counting on the jury to deliver justice in the form of a verdict that awards money damages.
The first part of the trial is jury selection. Volumes have been written about jury selection but suffice to say that the lawyer’s goal is to seat six members of the community on the jury who can be “fair and impartial” in listening to the
facts of the case and the judge’s instructions on the law, and then render a verdict free of sympathy for either party. Assuming the jury has not heard any evidence that should not have been admitted, and has been properly instructed on the law by the court, I believe the jury reaches the right result in 99% of all cases.
Following jury selection the lawyers for each side will give opening statements. The purpose of opening statement is to give an overview of what the evidence will show, and why based on the law, the lawyer’s client is entitled to a verdict in their favor. Thus, the injured party’s lawyer will explain how or why the accident happened, why the at-fault party is to blame, and why the injured party should be awarded money damages. In turn, the at-fault party’s lawyer will (unless liability has been admitted before trial) attempt to deflect blame away from the at-fault party and will try to minimize the injured party’s damages. As part of their openings, the lawyerswill mention the various witnesses who will testify at trial and what they are expected to testify to.
After opening statements are given the next step in the trial process is the presentation of evidence by way of live or videotaped witness testimony and introduction of documentary evidence such as medical bills and evidence of lost wages. Because the injured party has the burden of proof in a civil case it gets to present its witnesses and evidence first. After the injured party “rests” the at-fault party presents its case. As an aside, note that at the end of the injured party’s case the at-fault party may move (outside the presence of the jury) for a “directed verdict” on issues
such as whether the injured party was comparatively negligent and whether the injured party has suffered a permanent injury. A directed verdict motion asks the court to rule, as a matter of law, that no reasonable person could find in favor of the injured party on these issues. Because most personal injury cases are fact based, directed verdict motions are seldom granted.
Most cases that go to trial against the at-fault party are ones where the at-fault party has insurance. Accordingly, the main witness for the at-fault party will be the “expert” medical witness hired by the at-fault party’s insurance company. These witnesses are paid hundreds of thousands of dollars, if not millions, by the insurance companies to testify that the injury party’s complaints are “pre-existing” and were not caused by the at-fault party’s negligence. These witnesses are summed up best by the German proverb, “Whose bread I eat, his song I sing.”
After the presentation of the at-fault party’s case the injured party may present “rebuttal” evidence or testimony to rebut evidence or testimony put on by the at-fault party but not anticipated by the injured party. If no rebuttal evidence is made then the parties may make final motions to the court to dispose of certain issues before those issues reach the jury. As noted above, these issues might be whether the injured party was comparatively negligent and whether the injured party has suffered a permanent injury. The only difference is that at the end of the at-fault party’s case, the injured party gets to make these same motions.
Closing argument is the last step in the trial process before the jury “receives” the case and gets to deliberate. The purpose of closing argument is not to rehash the facts of the case. Rather, the purpose is to remind the jurors of the most important facts of the case and arm them with arguments that they can use to support their respective positions in jury deliberations.