By Lee Ann Obringer
You step in a puddle of spilled cooking oil in a grocery store and break three bones in your hand. You’re a concert pianist. How can you recover your lost income?
Your landlord claims you broke several things in your apartment that you didn’t pay for. You know they were broken when you moved in. The forms you signed when you moved in don’t specifically mention those items. How do you keep from having to replace something you aren’t responsible for?
Lawsuits are filed every day. In fact, according to an article on theCitizens for a Sound Economy Web site, there are more than 15 million civil cases processed annually in state courts alone, at the cost of over $1.8 billion. Although the number of product liability cases in 2000 was less than half of the number in 1997, the courts are still clogged with civil lawsuits. Most courts are trying to encourage people to settle their disputes out of court, and some require mediation at some point in the process before you can go to trial.
In this article, we’ll talk about what you have to go through to take someone to court — or what you might be able to do to avoid court and still get some satisfaction. Keep in mind that the legal process differs from state to state, so this may not always be exactly how it works in your area.
Civil vs. Criminal
First, let’s start by establishing a difference between a civil trial and criminal trial. When you sue someone and take him to court, it is usually based on a tort. When someone breaks a criminal law, the public prosecutor takes him to court for a criminal trial.
Torts are different from criminal laws in that a person may not have broken the law but may have acted negligently (either intentionally or not). As a result, someone else was injured physically, emotionally, and/or monetarily. Torts provide grounds for the lawsuit. Specific torts include trespassing, assault, battery, negligence, product liability, and intentional infliction of emotional distress. There are also three general categories that torts fall into intentional torts (e.g., intentionally hitting someone), negligent torts (e.g., causing an accident because you didn’t follow traffic rules), and strict liability torts (e.g., being responsible for damages caused by a product you manufacture and sell).
The tort law’s original purpose was to compensate victims for their losses and help prevent future losses by punishing the defendant (the person being sued). For these reasons, there are compensatory damages, which require the defendant to pay back the money the plaintiff (the one who filed the lawsuit) lost due to the defendant’s negligence and money to make up for pain suffering. There are also punitive damages. Punitive damages are what the defendant has to pay as his punishment for being grossly negligent, malicious, reckless, or acting intentionally — not just for making a mistake or not being careful. To get a handle on rising punitive damages, a decision was issued in July 2003 by the U.S. Supreme Court that limits the amount someone can recover in punitive damages.
If you intend on a lawsuit, here is a quick list of the steps you’ll go through before it’s all said and done.
- Try to settle out of court.
- File the suit
- Pre-trial motions and discussion
- Settlement discussions
- Trial and judgment
We’ll walk through these steps one by one.
Trying to Settle Out of Court
Settling out of court is far less expensive than a trial. Unless you know for a fact that you have an ironclad case, you stand the risk of spending large amounts of money and getting nothing in return. No satisfaction, no restitution, nothing. The best first step of any potential lawsuit is to try to work out your disagreement outside of court. The courts agree with this wholeheartedly and, in some states, require some sort of dispute resolution before you can even bring a case to trial. Even if you have an ironclad case, you need to weigh the litigation costs with the potential award you might (or might not) get after a trial.
Here are some ways you can resolve your dispute without involving lawyers and large sums of money. You have three general paths to take to avoid the courtroom.
First, you should try a good old-fashioned face-to-face conversation with your adversary. Is he even aware of the problem? Does he acknowledge responsibility? Have you tried to agree about how to remedy the problem? You may be surprised at how reasonable the person is. If you do agree, you should probably have it documented and each sign it with witnesses present. And it’s best to have an attorney draft it up to make sure you haven’t left any loopholes.
If you’ve tried your own negotiation and gotten nowhere, then you might consider mediation. In mediation, you and your adversary come together with a neutral third party who tries to help you work out an agreement. A mediator does not have any say in how the mediation turns out; he only provides advice about your options and how you could reach a fair agreement. He helps you arrive at a solution. In some courts, you must go to mediation before you can bring a lawsuit to court. You don’t have to agree, but you have to go through the process and try. This requirement is an effort to reduce the number of cases that go to court. Some contracts you sign may also require mediation before you can file a lawsuit in the event of a dispute.
If you arrive at a mediation solution, you can make it legally binding by writing up a mediation agreement that each party (and usually the mediator) signs. The agreement spells out the decision made and intentions for future behaviors that both you and your adversary are required to follow. By having a signed agreement, you can make the outcome enforceable in court.
Mediation fees vary a lot. Depending on where you live and who your mediator is, you may pay as little as $50 (or nothing) for mediation, or you may pay $200 to $300 per hour. Mediator training varies a lot, too. Some may be volunteers who have backgrounds in social work or similar fields, some may be specially trained for mediation in specific areas like divorce, and some are lawyers who mediate on the side.
Another form of dispute resolution is arbitration. Arbitration is similar to mediation in that you come together with your adversary and a third party to discuss a solution to your problem. The difference is that the third party, known as the arbiter, makes a legally binding decision on your case. Arbitration is more like litigation in this respect — you lose control of the decision. The arbiter’s decision, called the “award,” has to follow the law. If the arbiter doesn’t apply the correct laws to the decision, then a judge may overturn it. You are also allowed to have counsel at an arbitration. If you know your adversary is bringing an attorney, you should, too.
So when should you go to arbitration? Since arbitration is based more on the legal issues and less on the case’s personal issues, it is usually recommended for cases involving money rather than a case about a neighbor who keeps blocking your driveway. Cases like that are best settled in mediation, if possible.
Arbitration does cost more than mediation. However, it is still less than going to court. Like anything else, it depends somewhat on where you are geographical. Typical half-day arbitration may cost both you and your adversary anywhere from $500 to $1,000 each.
There are different types of mediation and arbitration. For instance, you can have nonbinding arbitration, which means that it isn’t binding if either party doesn’t like the decision. You can opt for high-low arbitration, which means you and your adversary establish upper and lower limits for the monetary award. (For instance, an insurance company would suggest a low amount, and the individual with the complaint would suggest a higher amount.) The arbiter isn’t told about the limits. If their decision is lower than the low number, then the low number is used, and if it is higher than the high number, the high number is used. If the decision falls within limits, then it becomes the actual amount of the award.
Many other variations are possible, as well. For more information, go to The WWW Virtual Library: Private Dispute Resolution.
Looking for an Attorney
If neither mediation nor arbitration works for you, then you begin your search for a good attorney. The best bet is to get recommendations from friends, family, business associates, or the local bar association. You should talk with several attorneys before you settle on someone. Look for experience in the area of your dispute and litigation experience, as well as interest in your case. If you need a very aggressive attorney, watch the attorney in the courtroom and feel his style. How well you get along with the attorney is also important because communication between you is crucial. If you don’t feel comfortable with the person, you may not communicate with him effectively.
Also, remember that you can always change attorneys if you make a poor choice. You would still have to pay any fees and reimburse for costs, and the initial attorney may have a right to part of any award you eventually earn.
If you’ve determined that a lawsuit is your only option, and you’ve found the perfect attorney to try your case, then you’re ready to get those legal gears turning. In this first stage of the lawsuit (known as the pleadings), your attorney writes a document (called the complaint) that:
- describes the basic facts of your case
- names everyone involved
- references the legal theory to back up your claim
- states what you want as the outcome (money, an agreement of action, etc.)
You (the plaintiff) and the suing person (the defendant) are known as the lawsuit’s parties. There can be more than one person on either side of the suit. In fact, there can be many defendants and many plaintiffs. For example, you and some of your co-workers might decide to sue the company you work for. If you all have the same complaint and seek the same outcome, this will work fine, and you will all save money on legal expenses. If not, you need to file separately. In cases where there are potentially hundreds of plaintiffs, then a class action suit may be considered (see About Class Action Lawsuits).
There are two court systems in the United States — state court and federal court. If your case involves someone from another state (known as a diversity case) and has a value over $75,000, then it MAY go to federal court. If your case involves some sort of federal law or right (known as a federal question), it can also go to federal court. Federal question is more fully defined as “jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties. Other than that, you’ll probably go to state court. Unless, of course, your case involves both federal and state laws, in which case you can go to either state or federal court.
How do you determine where the suit will be filed? If you seek monetary compensation of less than $5,000 (in many states), you can take your case to a small claims court. There is no jury in small claims court, and you can’t bring an attorney, although you can meet with one before the court date. The process is quick and a lot less complicated than in other courts. Since states differ in their rules on what qualifies for small claims court, check with your local Clerk of Court to determine your area’s requirements.
For larger cases, there are different levels of courts. These different courts have different jurisdictions. The decision of where your case will be heard is either out of your hands because there is a legal requirement that the suit is brought to a particular court, or your attorney gets to recommend one.
If the attorney has the choice of courts, then, in addition to considering where the case should be heard (geographically), whether the case should be heard in state or federal court, and at which level it should be heard, the attorney will also consider other aspects such as how convenient the court is, who the judge is, how quickly the court can hear the case, how complicated a court’s process is, etc. Here, the attorney’s knowledge and experience with local courts and judges can come in handy.
Once the complaint is completed, it is filed in the selected court. This really gets the ball rolling — and it gets the attention of your adversary, now known as the defendant. The filed complaint has to be delivered to the defendant. This is called service of process. In addition to the complaint, the defendant will also be served a summons. The summons explains what the defendant needs to do as a result of the complaint. This whole process is usually referred to as serving the defendant.
Sometimes it is difficult to track down the defendant. When this is the case, constructive service is necessary. This means the documents can be mailed to the defendant’s workplace, last known home address, and/or posted in the newspaper under the “Legal Notices” section.
The Defendant’s Response
Once the defendant has been served, he must respond to your complaint within 20 to 30 days (depending on the jurisdiction) by filing responsive pleadings. One type of responsive pleading is called an answer. In that document, the defendant might totally deny the complaint, deny certain parts of it, point the finger at someone else not named in the complaint, point out technical problems in the complaint itself, etc. In other words, an answer’s purpose is to modify the complaint somehow.
If Defendant’s responsive pleading isn’t an answer, it must be in the form of a motion. A motion introduces some other question to the court that the judge must rule on. Motions can be filed at any time during the trial up until the final judgment is made. The party that initiates the motion is called the mover, and the other party is called the opposing party. When one party files a motion, the opposing party can file a request for the judge to deny the motion. For example, the defendant may file a motion to dismiss if:
- There is no legally sufficient claim in the complaint that warrants the award the plaintiff is requesting.
- The court lacks the subject matter jurisdiction or personal jurisdiction for the case.
- The court isn’t of the proper venue.
- There has been a problem with the process itself.
The defendant may also file a countersuit against the plaintiff, which makes the plaintiff the counter-defendant. This begins a new complaint process; however, the two cases will be heard as one lawsuit.
If the defendant’s response isn’t filed within the allowed time (usually 20 to 30 days, but can be less in some courts), your attorney may ask the judge to enter a default judgment, meaning that you will be awarded everything you requested in the complaint. However, judges often allow the defendant additional time to file responsive pleadings if there is a good reason for not getting it done on time.
Once the pleadings are filed, discovery begins.
All of the legwork in gathering facts and evidence for a case is known as “discovery.” While each court may have different discovery rules, the basics are the same.
Discovery is the act and procedure of gathering every bit of evidence and information, no matter how trivial it may appear, from both parties involved as well as others outside of the suit. It can be information about the facts of the case, documents that may be important to the case, background information on the parties involved, names of others who might know more — pretty much anything. Information from a conversation that would never be admitted in court can be part of the discovery process. The justification for this is that it might be possible to gain true evidence from the knowledge gained from a discussion among the defendant, witnesses, or others related to the case.
There are some things, however, that are protected (privileged). While these vary greatly from state to state, here are some that might apply:
- Conversations between spouses are sometimes privileged because of the importance of free communication between a husband and wife.
- Conversations between doctors and patients are sometimes privileged unless the plaintiff is suing for personal injury.
- Conversations with religious counselors are sometimes privileged.
- Certain financial information can be privileged.
To save time and money, some judges may require that each side of the lawsuit turn over all the basic information regarding the case. In addition to this, attorneys gather information through requests for the production of documents, requests for admissions, depositions, interrogatories, and requests for independent medical examination (IME). The judge will often schedule conferences during the discovery stage. These can cover things like the status of discovery (i.e., whether it is moving along as it should be), settlement potential (i.e., whether there is a chance for settlement at this stage), or resolving any discovery disputes that may be arising.
Motions also can be filed if any of the discovery requests are not being met. For example, a motion for more responsive answers can be filed. This type of motion requires documentation of each discovery request, the response, and why it is inadequate.
- In the request for document production, each attorney requests documents that will help him prove his case. These documents can include business records, traffic or police reports, or anything else that might apply.
- Requests for admissions are requests your attorney will make of those involved on the other side of the suit to state under oath that certain facts are true or untrue. This is to save time and money gathering evidence to back up facts that are either obvious or prove that documents are authentic.
- Interrogatories are questions the attorneys prepare to send to the other party to answer. The answers to these questions can become part of the sworn testimony used in the case, so they are essential. It’s part of your attorney’s job to help you answer these questions — not to tell you what to say, but to make sure you only answer the question being asked and that you answer it fully.
- Depositions are interviews the attorneys have with witnesses or anyone else who may provide information for the case. They are the most important part of discovery because the attorneys find out what the opposition will say in his testimony and assess his ability as a witness. When someone is questioned (known as being deposed), attorneys from both sides can attend and ask questions. A critical part of all depositions is that the witnesses tell the truth — untruths (even minor ones) can come back to haunt them at the trial. Juries focus on those kinds of things. A witness’s credibility can be weakened when even minor discrepancies crop up.
- Independent medical examinations (IMEs) are medical examinations by a physician who is not involved with anyone and has not treated the person with the IME. While fairly rare, IMEs are sometimes performed for cases involving some aspect of the plaintiff’s physical condition or the defendant’s personal injury cases.
- Motions to quash may be filed if one party is trying to get protected information from the other party during discovery. If the judge allows the information to be admitted, then another motion (motion to seal matters produced upon discovery) can be filed.
If either party of the lawsuit doesn’t provide the information he is supposed to provide, the judge can impose a sanction against him. This means he will be fined for not providing the information. The sanction can be against either the attorney or the client. It depends on which person is refusing to provide the information.
Pre-trial Motions and Settlement Discussions
The whole purpose of a trial is to resolve disputes about the facts of your case. If neither party can dispute the facts, then a motion for summary judgment can be filed. A summary judgment means the judge looks at the facts, applies the law, and makes a ruling — saving you both a lot of time, money, and anguish. If there is any dispute about the facts, then the judge will deny the motion. In other words, there is no reason to bring a case to trial unless there is evidence that a jury should hear.
Other motions include:
- Motion to dismiss – The Defendant can request the case be thrown out because it doesn’t state any kind of claim that warrants an award; or, as we mentioned earlier, if the court lacks the subject matter jurisdiction or personal jurisdiction for the case, isn’t of the proper venue, or there has been a problem with the process itself.
- Motion for judgment – Even after the trial has started, the parties can request that the judge decide before the case is sent to the jury. Like the summary judgment, this motion is used when there aren’t any disputed facts in the case. If testimony in the trial has resolved the disputes (at least to reasonable minds), then the motion for judgment will probably be accepted, and the judge will rule. If not, the judge will deny the motion.
- Motion for judgment notwithstanding verdict – This motion is filed when the case goes to the jury, but the jury’s verdict isn’t reasonable. (Note: This is rare.) To file a motion for judgment notwithstanding the verdict, your attorney first would have to have filed a motion for judgment after all of the evidence had been heard. If the judge denied the motion and sent the case to the jury, and the jury’s verdict then came back with is totally unreasonable, the motion for judgment notwithstanding the verdict can be filed. If the judge agrees, he will rule on the case.
Before a case can go to trial, discussions take place for settlement out of court. This is by far the most frequent resolution for civil lawsuits. This is often the stage when the mediation takes place. When you settle, it usually means that each side is giving in on something. For example, maybe the defendant will admit to being negligent when he put in an inadequate drainage system for his pond’s overflow pipe after it washed away your driveway. Still, he may not agree to drain the pond as you are demanding. On the other hand, you may get your driveway rebuilt along with a better drainage system to ensure it doesn’t happen again. Your demands for lost wages while you couldn’t get your car out of your driveway to go to work may have to be dropped or could be a point to negotiate further.
Some of the things that have to be considered during this stage include:
- Does the defendant have the money you are demanding for damages? If not, is there any use in going to trial? Also, are your monetary demands reasonable for this type of dispute?
- Do you (and your attorney) think you have a good chance of winning now that discovery has produced more facts? If you aren’t sure, then settling maybe your best option.
- What if the fees you pay your attorney end up being higher than what the judge or jury awards you? If there is a chance of that happening, you certainly want to settle (only if you’re trying to get money rather than some other sort of action.) If you can reach an agreement that would be beneficial without involving money, that is a reason for settling out of court.
- Are you sure you are up for the emotional roller coaster of a trial (taking the stand to testify, having your dirty laundry aired out in public…)?
Settlement discussions can actually happen at any time — the earlier, the better if you want to save on attorney fees. Most often, settlement discussions occur when some big piece of evidence turns up that will greatly affect the outcome of a trial one way or the other. Other times, settlement discussions occur right before the trial or when the other party files a motion that could affect what you might ultimately get out of the case.
Negotiating a Settlement
If you do decide to try to settle, you can either have your attorney draft a formal offer of settlement strictly based on your terms, or you can sit down with the defendant and negotiate.
By now, you and your attorney should know about all of the case’s facts and have a good feel for how the defendant feels about the case and possible outcome. If you decide to sit down and negotiate a settlement, you should first plan a strategy. Keep in mind that if your offer is totally one-sided, it won’t be accepted, just like in any negotiation type. Of course, some of your strategies will depend on the case’s facts and how strong your side of it is. Since you’ve gotten this far in the process without the case either being decided by a judge or else totally dismissed, there must be some disputed facts that require a trial. Sitting down and discussing those discrepancies with the defendant may or may not get you anywhere.
Here are some pointers for the negotiation table:
- Don’t nitpick the small points. Go straight to the major issues and use the smaller ones only as you need to.
- Maintain a nonhostile (or mostly nonhostile) demeanor — even if you don’t think things are going your way.
- If you have anything that can be held back as negotiation ammunition later on, then do so. It may come in handy. If, however, you may get more right off the bat by presenting this ammunition early on, then do so.
What Will the Settlement Cover?
A settlement ends the lawsuit. In doing that, it also lays out the different points that the plaintiff and the defendant have agreed on, such as how much money is going to paid by whom to whom, how/when/where that money will be paid, what actions will be either forced or prohibited, who is paying court costs, etc. It also will usually state that this case cannot be resurrected with a new lawsuit based on related issues. These things all would be specifically spelled out in the written document known as the dismissal with prejudice, a notice of dismissal, or sometimes the stipulation for dismissal. Once this document is completed and signed, the defendant is “released” from the lawsuit.
If you’ve gone through all of the pre-trial requirements (discovery, motions, negotiations, etc.) and still haven’t settled your case, then it’s time to accept that you’re going to court. In some states, at this point, either your attorney or the defendant’s attorney (if the defendant has also reached this conclusion) files a memorandum to set a trial date (this is also sometimes called a motion to set a trial date or an at-issue memorandum). This document can include information like the details of the case, what your demands are, whether you want a jury trial or bench trial (see below), any recent settlement offers you’ve had, and an estimate of how long you think the trial will last. Note that these types of procedures vary a lot from state to state. There is simply a mandatory status conference at a specified time after the suit is filed to set a trial date in some states.
There are two types of trials — trials that a judge heard (known as a bench trial) and trials that a jury heard (known as a jury trial). Deciding which type you need may take some thought. Having a jury trial can slow down the entire process because there is additional time needed for jury selection and because your attorney will need additional time (and fees) to prepare. There is also the time the jury must take to decide the case. A judge may (or may not) make a quicker decision. It’s not unheard of for judges to delay decisions for months, while a jury might have a decision in a few hours. You never know.
Regardless of the time issue, a jury trial may or may not be what you want. If your case involves any emotional issues, then, depending on which side of those issues you’re on, you may or may not want a jury to hear it. If your case stands only on a legal technicality, then you probably don’t want a jury. You could just be seen as greedy and unfeeling. If your case could really go either way, then you stand the chance of a hung jury — meaning the trial is over, but nothing is decided. Rely on your attorney’s experience with the courts to determine the best type of trial.
Once you know the type of trial you need, then the trial date can be set. Some courts operate on a “direct calendar” and others on a “master calendar,” and some on neither of these systems. If the court your case will hear is a direct calendar court, then the judge you’ve been working with will schedule the trial and will also preside over it. If the court is a master calendar court, then you may not have the same judge. Either way, there will probably be a “trial setting conference” where both parties’ attorneys meet with the judge to schedule the court date. Jury trials often have to be scheduled at later dates than bench trials because of the time involved in scheduling the jury. If scheduling conflicts later come up for either party, there can be a continuance request.
Before the trial begins, pre-trial conferences are sometimes called to lay out the game plan for the entire trial essentially. (These conferences may not be necessary for all trials.) At these conferences, both attorneys go over what they will present, what order they will present it, and any issues that will need to be presented separately to prevent predisposing the jury about any of the facts. In addition to the meetings, the attorneys sometimes have to submit a pretrial brief that outlines all of the case’s facts with indications of whether the facts are disputed or undisputed. The brief also has to detail their exhibits and evidence and provide a list of witnesses. The judge will also request one of the attorneys to submit a “pretrial order,” a document that describes what will happen in the trial — a script of sorts. Just as with the other procedures we’ve talked about, these vary from state to state and may not be the case in your area. In some areas, a witness list is all that is necessary.
In addition to all of the documents the attorneys have to prepare for the court, they also have to prepare for the trial itself. The attorney has to be intimately familiar with the case’s facts and details and present those through the series of questions they ask the witnesses. Here are some of the things the attorney does to prepare for the trial:
- Review all of the depositions and information gathered in the discovery
- Prepare questions for witnesses.
- Determine the most logical order to tell the story and present the evidence
- Prepare the witnesses for cross-examination (questions posed by the opposing attorney)
- Prepare objections for evidence that should not be presented.
- Have visual aids and exhibits created
- Write the opening statement.
If a jury will hear your trial, then jury selection is essential. Jury pools are pulled from the big list of registered voters in your area. In some courts, the judge will ask the potential jurors all of the questions, but in others, the attorneys will also be allowed to ask questions. The jurors are questioned to screen out anyone who has personal knowledge of the case, knows someone on either side of the case, or has had a similar experience to the one presented in the case. If allowed, the attorneys may ask additional questions to screen out potential jurors who may not support their side of the case. The selected jurors are sworn to decide the case impartially.
At the Trial…
As most of us know from watching Law & Order or L.A. Law, the first thing that happens in the trial is the plaintiff’s attorney’s opening statement (if it is a jury trial), followed by the defendant’s attorney’s opening statement. The opening statement is like the preview for a movie. You’ll hear the highlights of the case and evidence presented and get the gist of the story.
Since evidence is usually introduced through the witnesses’ testimony, the order in which the witnesses take the stand and the questions they are asked must be set up with precision. In civil cases, the plaintiff’s attorney is allowed to call the defendant to the stand, as well. Attorneys can also introduce evidence (if both sides have agreed that it can be introduced) by stipulation.
Questioning the Witnesses
The questioning of each witness by the attorney who called that witness to the stand is called direct examination. During the direct examination, the opposing attorney can object to the question before the witness has a chance to answer it. The attorney may be objecting to the question itself or to the way the question is being asked. For example, the way the question is asked may be “leading” the witness to a specific answer. He may also object to the question because the witness’s answer would be hearsay (meaning the witness doesn’t know the information first-hand).
The judge decides if the attorney’s objection is justified (sustained) or not justified (overruled). If the witness answers a question before the judge has a chance to say whether the question should be withdrawn, then the judge can instruct the jury to disregard the witness’s answer.
Once the plaintiff’s attorney has asked a witness all of the questions he has prepared, then the defendant’s attorney gets an opportunity to ask questions, known as cross-examining the witness. After the defendant’s cross-examination, the plaintiff can redirect more questions. These redirect questions have to relate to the information that was brought out in the original questioning. The defendant can then recross-examine, with the same restriction that these questions relate to the original questioning.
After the plaintiff’s attorney has called all witnesses, the plaintiff’s case rests. Then, the defendant’s attorney begins calling witnesses for the defense. The same rules apply for cross-examination and redirects. When the defendant’s attorney has questioned all witnesses for the defense, the defendant’s case also rests.
Burden of Proof
In civil cases, the plaintiff has the “burden of proof,” meaning, essentially, that the plaintiff has to have greater evidence to prove his case than the defendant must have to prove his — hence the “scales of justice.” If the plaintiff’s evidence isn’t great enough to tip the scales, the defendant wins.
For punitive damages (in most states), the burden of proof is a step higher. There must be “clear and convincing” evidence to win the case. This is a middle standard of proof, falling between the “preponderance” standard of most civil cases, where one side simply has to have more evidence in its favor, and the criminal standard of “beyond a shadow of a doubt.”
Each attorney sums up the evidence and facts presented in the trial in their closing statements (if there is a jury). No additional information can be introduced during these statements. The plaintiff’s attorney closes first, then the defendant’s attorney, then the plaintiff’s attorney has an opportunity to make an additional statement, usually to clarify something the opposing side said. This is called a rebuttal.
In jury trials, the judge instructs the jury members on how they should decide the case (deliberating), which party has the burden of proof, how the law should be applied, and whether they have to have a unanimous vote or not. The jury will either select its own foreman, or the judge will assign one (the jury foreman takes charge of the process). The jury then goes to a private room to discuss the case’s facts and vote on the outcome.
When the jury has voted and decided, the members return to the courtroom, and the foreman reads the verdict.
Sometimes, the jury just can’t come to a decision. This is called a deadlocked jury or a hung jury and can lead to a mistrial. If there is a mistrial, the trial is over, but no one has won. In this case, the parties have to retry the case or find some other way to find a solution. Post-trial Proceedings and Appeals
Even after the trial, there are some steps to go through. Let’s say the plaintiff wins the case. The plaintiff’s attorney must evaluate the costs and come up with the totals to formalize the judgment. The clerk of court then files a “notice of entry of judgment.”
The plaintiff also has to determine how he’s going to enforce the judgment. If the defendant must pay the plaintiff money, then (depending on the state) the plaintiff may have options on how to collect — this may include garnishing wages, taking assets to cover the dollar amount, or putting a lien on the property.
And, while these decisions are being made, there is always the possibility that the defendant is still trying to win the case. The defendant may try to get the judge to overturn the ruling, request a new trial based on some problem during the trial, or appeal the case to a higher court. Remember the “motion for judgment, notwithstanding the verdict?” If the jury’s verdict was really off-base to most reasonable people, then the judge might agree to the motion and change the verdict.
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