USA: An Overview of the Law 2, Chapter 3

USA: An Overview of the Law 2, Chapter 3

2 The Trial
Most lawsuits never go to trial. the parties settle their dispute or simply drop the case. often, the outcome of a pretrial motion resolves the case or encourages one of the parties to settle. i f a case does go to trial, it’s usually because the parties disagree so much about the underlying facts that they need a judge to decide whose version is correct.trials involve a set of rituals that are supposed to ferret out the truth. no one trial is like any other—each is a function of who the parties are, what type of legal issues are involved, the personalities of the attorneys and the demeanor of the judge. But the biggest determinant of what happens in a trial is whether it is a trial by jury or a trial by judge. Many of the rules governing trial procedure are aimed at producing an impartial jury and making sure that the jury doesn’t receive evidence that is unreliable in some fundamental way. judges, on the other hand, are presumed to be able to act impartially and tell reliable evidence from unreliable evidence.Jury trials jury trials begin with the selection of the jury. the judge and lawyers for both sides question potential jurors about their knowledge of the case and possible biases relating to their clients and the important issues in the case. this process is called voir dire.

((Motions in Limine: From the first moment of the trial to the last, one or both parties may want the judge to run some aspect of the trial in a certain way. For instance, the plain-tiff may want to prevent the defendant from even trying to prove a certain point, believing that to do so would hopelessly prejudice the jury against the plaintiff. These types of requests are called “motions in limine” (that is, motion on the verge of trial). They are considered by the judge in a meeting outside the hearing of the jury, usually in the judge’s office.))

Once a jury is selected, the attorneys address the jury in opening statements that outline what they expect to show in the upcoming trial. then the plaintiff begins, offering testimony from witnesses and information in documents to establish a version of events. the testimony and documents are then subject to challenge by the defendant through a process called “cross-examination.” once the plaintiff’s case is presented, the defendant has the opportunity to present a defense, subject to the plaintiff’s cross-examination. Commonly, the plaintiff gets the last shot (called a “rebuttal”) in an opportunity to answer the defendant’s case.

When the parties are through presenting their cases, each side gets to make a closing argument, summarizing what they think they’ve proved and imploring the jury to see it their way. then the judge explains to the jurors that it is their job to decide what the facts are in the case and that they should follow certain legal principles in deciding whether those facts warrant a decision for the plaintiff or the defendant. Collectively, these explanations are called “jury instructions.” Although it is the judge’s responsibility to give the instructions, the plaintiff and defendant are first invited to give the judge their proposed instructions. Because the jury instructions in a case often determine who will win and who will lose, both sides spend a considerable amount of time drafting instructions that will be most favorable to their side. A meeting between the judge and the parties is held to iron out discrepancies, the judge being the final decision-maker. then the judge assembles the instructions that are to be given in a final written version and reads from it verbatim.

((Researching the Rules of EvidenceAny source of information that a party offers as proof of a fact is called “evidence.” There is admissible evidence and inadmissible evidence, and the rules that determine which is which are quite complex. But they almost always revolve around two issues:• whether a particular source of information is too unreliable to let a jury consider; and• whether an out-of-court conversation that someone is trying to introduce may be kept out of evidence.Many of the disputes during a trial revolve around what evidence is admissible and what isn’t, and the many bench conferences (when the attorneys and the judge huddle and whisper out of the jury’s hearing) that occur during the typical trial involve whether a bit of testimony or a particular document should or should not be allowed “into evidence.” Decisions by the judge on these disputes are often the subject of severe Monday-morning quarterbacking in an appeal by the losing party.The rules of evidence for each state are usually published as part of that state’s statutes. Most states also have background resources that devote them-selves to analyzing the rules of evidence in excruciat-ing detail. Although evidence is clearly related to court procedure, it is often considered a “substantive law” field of its own. (See Chapter 5.)))

((Researching Jury Instructions: Compilations of acceptable jury instructions are available in most states for common types of cases—for instance, auto accident cases. In California, civil jury instructions are published in B.A.J.I. (Book of Approved Jury Instructions) and criminal instructions are in CALJIC-Crim (West Group). Federal jury instructions can be found in Modern Federal Jury Instructions, by Leonard Sand (Matthew Bender).If the losing party appeals, the instructions that were offered by that party but rejected by the judge often form an important part of the appeal, since the decision by the judge is considered a “legal decision” that is an appropriate subject for an appeals court. (See “Appeals,” below.)))

Once the jury has heard the instructions, they retire to a room to decide the case. in civil cases the plaintiff must prove its case by a “preponderance of evidence”—that is, it must be more probable than not that the plaintiff is right. the jury need not be unanimous; the normal requirement is a 3/4 vote in favor of either party. Most civil juries consist of twelve jurors, but some states are experimenting with six-member juries.When the members of the jury have reached a verdict, they report it to the judge, who announces it in open court with the parties present.Any party who is dissatisfied with the verdict can ask the judge to set it aside or modify it. But usually the judge upholds the verdict and issues a judgment for the winner.Judge trialsjudge trials are a lot easier than jury trials. there are far fewer squabbles about evidence, since there is no jury to be concerned about, and no jury instructions to prepare. When all the evidence is in and parties have made final arguments to the judge, the judge decides the case and issues a judgment, usually accompanied by a document termed, “Findings of Facts and Conclusions of law.” this document lets the parties know why the judge reached the decision and gives them a basis for deciding whether or not to appeal.

Appeals
Any party who is dissatisfied with the judgment may appeal the issue to a higher court. Appeals are almost always about the legal decisions made in a pretrial motion or a trial—in jury trials decisions about evidence and the jury instructions, and in judge trials decisions about the judge’s conclusions of law. they are seldom about the decision by the judge or jury as to whether certain facts were true or false. however, some appeals successfully argue that the judge’s or jury’s decision was not properly based on the evidence introduced in the case.Appeals are usually allowed from final decisions in a case, such as a judgment of dismissal, summary judgment or judgment after trial. however, sometimes decisions by the court before final judgment is entered can be reviewed by an appellate court before the trial continues. these are termed “interlocutory appeals.” For example, as discussed in “how a Court Case Works: Steps in litigation,” above, parties are usually subjected to a pretrial process called “discovery.” this requires each side to disclose to the other the evidence and testimony that will be presented at trial so that the element of surprise is reduced. Should one party refuse to disclose information, the other party can seek an order from the court requiring disclosure. if the non-disclosing party wants to contest the court order, an appellate court can be asked to immediately step in and decide whether the order was improper. these interim interlocutory appeals are the exception to the rule; appellate courts much prefer to refrain from reviewing lower court decisions until the trial is over and they can decide all questions at once.in some states, seeking help from a higher court in these situations is termed an appeal, while in others it is termed a request for a “writ of mandate” or “writ of prohibition.” Writs are orders directed at officials by courts, or at lower courts by higher ones. When immediate relief from a higher court is necessary, the relief often involves a “petition for a writ” rather than the “filing of an appeal.” As mentioned, sometimes the basis of an appeal is a disagreement with the trial court’s determination of the facts. this might happen, for instance, when there is clear and overwhelming evidence on behalf of one party, but the judge or jury ignores the evidence and finds for the other side. generally speaking, however, appellate courts don’t disturb a trial court’s determination of the facts unless it was completely unsupported by the evidence.in an appeal, “briefs”—typewritten statements of the parties’ views of the facts and law—are submitted to the appellate court. the appellate court also has a copy of the entire written “record” of the trial court. this record usually consists of all documents submitted by the parties to the trial court, exhibits and documents introduced in the trial, a transcript of exactly what was said at the trial (produced by a court reporter or a tape recorder) and all judgments and orders entered by the trial court.in addition to considering the briefs and the trial court record, the appellate court usually hears oral arguments from the attorneys on each side. After the oral arguments, the justices (judges on courts of appeal are usually called “justices”) discuss the case and arrive at a decision. A justice representing the majority (sometimes the justices who hear the case will not agree on how it should be decided) is assigned to write the opinion.if a party disagrees with the outcome of an appeal in the appellate court, another appeal can usually be made—to a state supreme court or the u.S. Supreme Court. (See Chapter 7 for which courts appeals are filed in.) that requires filing a “petition for hearing” in a state court, or a “petition for Writ of Certiorari” —or, as it is usually called, “petition for Cert” —asking the Supreme Court to consider the case. if the court grants a hearing or issues a Writ of Certiorari to the court that decided the case being appealed, it will consider the case. if it denies a hearing or “cert,” then it won’t.Supreme courts grant hearings or cert only in a very small percentage of cases presented to them. they usually choose cases that present interesting or important questions of law or an issue that two or more lower appellate courts have disagreed on. For example, if the federal Court of Appeals for the 6th Circuit decides that the military registration system is uncon stitutional because it doesn’t include women, and the Court of Appeals for the 7th Circuit decides that the system is constitutional, the u.S. Supreme Court might grant cert in these cases and resolve the conflict.

When the u.S. Supreme Court or a state’s highest court decides a case, it almost always issues a published opinion. u.S. Supreme Court cases serve as precedent and binding authority for all courts, and cases from a state’s highest court serve as precedent and authority for all courts in that state. Supreme Court decisions are very important sources of law. (See Chapter 7 for more on precedent and authority.

((Filing Cases Directly in Appellate and Supreme Courts: Occasionally, cases can be brought directly in the intermediate appellate courts or supreme courts, but only when there are extremely important issues of law in the case and little factual dispute. Also, under federal and state constitutions, certain types of dis-putes go directly to the supreme courts; this is called “original jurisdiction,” as opposed to their usual ap-pellate jurisdiction. For example, if one state sues an-other, the suit is brought in the U.S. Supreme Court, not a U.S. district court))

Introduction to Reported Cases
decisions by appellate courts, federal trial courts, and specialty courts (such as bankruptcy) are printed in books called “reporters.” each set of reporters contains opinions from a particular court or group of courts. For example, there are regional reporters (these contain opinions from the appellate courts of a group of neighboring states), state reporters (these contain only one state’s appellate decisions) and subject matter reporters (these contain decisions affecting a certain area of law). For instance, “p.” (which stands for pacific) is the reporter series that collects the appellate decisions from the western states, hawaii and Alaska; “Cal. App.” contains appellate (but not Supreme Court) cases from California; and “B.r.” contains federal bankruptcy opinions. in addition, federal cases are reported in their own sets, one for trial level decisions (called “F. Supp.”) and one for appellate opinions from the Circuit courts of appeals (abbreviated as “F.”). When the editors of the reporters decide that their sets have become too long, they begin a new series and identify the new one as “2d” or “3d,” and so on. in Chapter 9, we provide more information on how to use and interpret case citations.