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Trials are perhaps the most familiar and yet least well understood part of our system of jurisprudence.  A real trial is somewhat like what is seen in motion pictures or on television.  The players and layout are familiar from those sources.  What happens in court during a trial is substantially different from the way it is portrayed in the media.  Typically the process is slower and less exciting.  However, it is real and for the parties it can bring some of the most dramatic moments in their lives. 

Players & Layout

There is a Judge behind a raised desk we call the bench.  The Judge typically does not decide the case but rather makes rulings on the admissibility of evidence and motions by counsel, and gives jury instructions at the end of the trial just before the jury begins its deliberations. 

A Clerk and court reporter may sit below but near the judge.  The Clerk may be a secretarial type that helps the Judge administer his calendar.  There may also be a Law Clerk sitting near the Judge.  The Law Clerk will typically be a recent law school graduate and will research the law, read briefs, and make recommendations to the Judge on rulings.  The court reporter will be present to take down what is said by anyone in the courtroom when on the record during a trial. 

There will typically be at least one Sheriff's Deputy in the courtroom.  The Deputy will be present for security and order and may perform a few other functions such as calling court to order, assisting jurors, and directing others as to where to sit and go about the courthouse. 

Jurors decide the case.  They sit in the jury box after they have been selected to be jurors.  Jury selection is actually a misnomer.  The legal term is Voir Dire, but the process is elimination of unwanted jurors not selection of desired jurors. 

Trial Calendar

A trial calendar is a list of cases that a Court believes may be ready for trial.  If your case appears on a trial calendar you will have to be ready to try your case at any time during the calendar period.  See our Trial Calendar page to learn about trial calendars, what they are, and what it means when your case has been placed on the trial calendar.  

Conduct of the Trial

A trial proceeds in phases as follows:

  1. Welcome and introductions
  2. Pretrial motions
  3. Voir Dire
  4. Plaintiff's opening statement by counsel
  5. Defendant's opening statement by counsel
  6. Plaintiff's evidence and witnesses
  7. Defendant's evidence and witnesses
  8. Closing argument by counsel
  9. Jury Instruction
  10. Verdict

During welcome and introductions the Judge will typically attempt to get to know counsel, the parties, and the nature of the claim to some extent. 

After introductions the Judge will consider any pretrial motions.  These may include motions in limine which are motions by a party seeking to keep out evidence that the other side may seek to introduce.  There are sometimes legal reasons a type of evidence may not be received by a jury and there may be argument by the attorneys to the judge as to why certain evidence should be admitted or not. 

The next step in the trial process is jury selection or voir dire.  The most important item to know about voir dire is that after asking questions of a panel of approximately 30 jurors the process is to strike jurors from the pool and to winnow the group down to the number of jurors and alternates that will be the trial jury.  Generally we have a jury of 6 in State Court and a jury of 12 in Superior Court.  The jury strike process starts with the Plaintiff striking, i.e. eliminating, a single juror then proceeds to the Defendant and goes back and forth until the parties exhaust their jury strikes.  The Plaintiff loses the jurors he would most like to have on the jury as does the Defendant.  In this manner a jury that is unlikely to hold strong opinions related to a case is "selected".

After the jury is selected the attorneys stand up and make an opening statement.  This is supposed to be just a statement about what the lawyers think the evidence will show as opposed to an argument as to why a particular party should prevail.  Many times, however, lawyers attempt to work argument, persuasion, reasoning into their openings. 

Plaintiff then puts on Plaintiff's evidence first.  This means calling witnesses, reviewing and authenticating documents, and eliciting testimony.  The most important thing about this part of the process for the layman to understand is that the questions are supposed to be open ended and not leading.  The idea is for the Plaintiff to tell his story and not for the lawyer to spoon feed it to the jury.  Many Plaintiffs and other witnesses are nervous, have trouble following the process, forget to include important points in their testimony, and sometimes need a nudge in the form of a leading question such as "Weren't you completely stopped at the red light before it turned green and you started moving?" 

The Defendant must wait through the evidence of the Plaintiff.  This sometimes takes days.  A case will often seem lopsided before the defense witnesses take the stand.  There is an ebb and flow to a trial.  If the Plaintiff's case does not seem overwhelming after only his witnesses have testified the Plaintiff is in trouble.  If the Defendant has not substantially evened the scales by the end of defense evidence it is the Defendant that has the jury to fear. 

Closing argument is perhaps highest in the conscience of jurors.  In the media it appears dramatic, sometimes taking a whole 2 minutes and 30 seconds in a one hour dramatic television series.  In reality closing argument takes one to two hours and reviews much of the evidence.  Many little arguments are made in support of a hoped for conclusion by the jury. 

After closing argument comes the Judge's charge to the jury.  This is a less well known part of a trial.  The Judge reads his charge from carefully prepared statements of law.  These statements of the law come from the parties who propose to the Judge what he should instruct the jury.  Most Judges drone on when reading jury charges.  The surprising part is that frequently several jurors are listening intently and taking notes.  A trial can hang on a jury's interpretation or misunderstanding of a jury instruction. 

After the jury charge the jury retires to the jury room and attempts to render a verdict.  Most trials result in a verdict.  Frequently substantial compromise is necessary to come up with a unanimous verdict.  Hung juries, those that cannot come to a verdict are rare.  

Send mail to davidjreed@davidjreed.com with questions or comments about this web site.
Last modified: December 05, 2006