Most personal injury cases (including car accident cases) in the United States today are resolved without trial. Trial is the culmination of months or years of work by your car accident lawyer in investigating the facts of your car crash, researching the law, gathering evidence, conducting discovery and doing the myriad of other tasks it takes to get your case ready for trial. It also means that for one or more reasons, attempts to settle the case have not succeeded.
Your right to have your case tried before a jury of your peers traces back to the earliest days of our country and continues today. Some believe that it is the best and fairest system yet devised to resolve disputes. If for some reasons both sides don’t want to have a jury trial they can usually request that the case be decided by a judge only (called a bench trial). Generally, it takes both parties to agree to a bench trial. If either party requests a jury trial, the case will usually be heard by a jury.
In a jury trial certain issues are decided by the jury and other questions are typically resolved by the judge. For example, the relative fault of the parties and amount of damages you are to be awarded are typically questions the jury decides. Conversely, the judge usually decides purely legal issues like whether certain things are proper evidence in the case.
Jury Selection (also known as Voir Dire)
Aside from conferences with the lawyers and possibly making some preliminary rulings, in a jury trial selecting who will serve on the jury is usually the court’s first major order of business.
Juries in civil cases in the United States today typically include six or twelve jurors and one or more alternate jurors. The number of jurors on your case depends in part on the procedural rules of the court system in which your car accident case is being handled. For example, in the federal court system juries on civil cases are often six members, plus alternates. In many state court systems twelve jurors are the norm.
Potential jurors are typically identified through public records by, for example, voter registration lists. When a court has a case set for jury trial and needs jurors, it will issue summonses to potential jurors requiring them to appear, often on a certain date, for jury service. The potential jurors will often also receive questionnaires about their background. At a certain point, typically shortly before trial, these questionnaires may be provided to the lawyers so they can learn about the potential jurors and use this information to evaluate which jurors might be appropriate for the case.
While courts have varying systems, often when jurors appear, they will be sent to a court room. The judge typically provides the jurors with some preliminary information about the process which is ahead of them. The judge may then question the jurors, or ask them some preliminary questions and then allow the lawyers to question the jurors.
The goal of jury selection is to obtain a jury which can render a fair and impartial verdict. During jury selection, the lawyers on each side are trying to learn enough about the jurors by reading juror questionnaires, asking them questions and listening to responses to decide which jurors are least favorable for their case and avoid having them on the jury.
Jurors are typically removed from the panel through a “challenge for cause” or “preemptory challenge”. Generally, any number of jurors who meet the criteria for a challenge for cause may be removed. Each side is also given a limited number of preemptory challenges. No reason is required to exercise a preemptory challenge. Lawyers will often first try to remove a juror for cause and, if the cause challenge is unsuccessful, and they really don’t want that person on the jury, then use one of their few preemptory challenges to remove them.
After all the challenges have been resolved and potential jurors excused, the court will usually seat and swear in the jury. After this process is complete, the court may take a recess. The court may then provide some preliminary directions called “instructions” to the jury. The core of the trial can then begin.
Opening statements are the next major step in the trial. Opening statements are each side’s opportunity to tell the jury about the case and discuss what evidence they intend to use to prove their case. The plaintiff gets to go first, followed by the defendant. In many courts it is improper to argue about the evidence in opening statements, or to discuss information which the lawyers do not believe, in good faith, that evidence supporting these statements will be admitted during trial.
Information usually becomes evidence (lawyers and judges call it “admitted into evidence”) at trial in two forms. One is through the live or recorded testimony of witnesses. The other is through documents or other tangible things, called “exhibits”. Witnesses we might want to use in the trial of your car accident case include you, your spouse, other people who witnessed your wreck, your treating doctor, expert witnesses, the investigating police officer, the other driver and others. Some exhibits we might offer as evidence include photographs of the crash scene, damaged vehicles and your injuries, the police accident report, medical records and bills.
There are detailed and technical rules controlling what and how evidence is admitted during a trial. In the federal court system, many of these rules are contained in the Federal Rules of Evidence. States usually have their own evidence rules which may or may be similar to the Federal Rules of Evidence. State courts typically follow the evidence rules of the state in which they are
Part of what lawyers do when they prepare a case for trial is to decide what evidence they want to admit and obtain that evidence so that it can be admitted under the rules of evidence. This may mean asking questions during depositions in the proper form, so they are not objectionable at trial, obtaining proper “authentication” of business records which may be offered at trial and having the evidence required to establish the proper foundation for other evidence which may be offered.
Lawyers trying to prevent the admission of evidence they think will help the other side or hurt their case have a number of tools at their disposal. At the pretrial conference, or before trial, they may request that the judge order that certain evidence may not be admitted or offered at trial. Usually, lawyers may also object to evidence when it is offered at trial. Some common objections that you may have seen on lawyer movies and television shows include irrelevant, immaterial, calls for a conclusion, leading question and calls for speculation. There are numerous other objections.
At trial, after an objection is made, the judge decides or “rules” on it. If the objection is overruled, the evidence can be admitted. If the judge sustains the objection the evidence may not be used.
Plaintiff’s Case in Chief
In the American court system the person bringing a claim (the plaintiff) typically has the “burden of proof” to prove their claim. In part because of this, the plaintiff presents their case “case in chief” first. Broadly speaking, the issues in a jury trial arising from a car accident often break down into what lawyers call “liability” and “damages”. Liability refers to who is, and in what proportions, are responsible for causing the injuries the plaintiff sustained. Damages refers to what are the plaintiff’s losses–for example, medical expenses, lost income, disability, reduced earning capacity, pain and suffering.
How much proof is required depends on the nature of the case. People seeking recovery for injuries sustained in a car accident usually are bringing a civil case. With certain exceptions, many claims in a civil case must be proven by “preponderance of the evidence”. This is contrasted with the very high “beyond a reasonable doubt” standard, a prosecutor is required to prove to obtain a criminal conviction.
Part of the trial lawyer’s job is to evaluate the evidence obtained during discovery, determine what evidence is required or would be most useful to establish the claims which they are trying to prove. They then must decide what witnesses, documents or other exhibits, they need to use to get this admitted into evidence and decide the most beneficial way and order to present this evidence.
There are differing opinions and strategies about how to do this best. One method is to call the plaintiff first, then present the medical testimony and other damage evidence, followed by the evidence which establishes the driver’s liability for the injuries and damages, the plaintiff sustained. Another method is to first establish the driver’s liability and then present the medical and damage evidence.
Either way, the trial lawyer and/or the trial team has to carefully define the order in which evidence will be presented and sequence the arrival of live witnesses so they arrive at proper times for their testimony. They also need make sure that exhibits are ready in admissible form and presented at the right time with the necessary testimony to establish the basis for their admissibility. Evidence or trial aids being presented through the use of technology like PowerPoints, testimony presented on video and other exhibits need to be working properly and presented at the right time. All this while dealing with defense objections, presenting a persuasive case and responding to the array of other unexpected issues and problems which can arise. It can be a tall order.
After the plaintiff has submitted all the evidence they plan to offer, they may say “Your Honor the plaintiff rests” or similar words. It is then the defense’s opportunity to present their evidence.
Defendant’s Case in Chief
The defense may have multiple goals in presenting their case in chief. Probably their primary major goal is to attack the case which the plaintiff is just presented, try to reduce its believability and possibly present evidence supporting certain specialized defenses called “affirmative defenses”.
“Liability” is a term lawyers used to describe who was responsible for causing plaintiff’s injuries. The driver’s defense lawyer may try to introduce evidence that the wreck happened differently than the evidence the plaintiff submitted shows. One way to do this is by producing eyewitnesses whose testimony contradicts the testimony and other evidence which was admitted by the plaintiff about how the wreck occurred. Witnesses testify under oath. Therefore, if the plaintiff’s evidence accurately described how the wreck occurred, this technique may be of little use to the defendant. Another common method is to try to prove that the collision was not the other driver’s fault or that the other driver or some other party is also partly to blame.
Defense attorneys will also typically try to attack or minimize the plaintiff’s evidence on damages. Common ways to do this are to try to present evidence that the plaintiffs problems are not as bad as the plaintiff claims, were not caused by the collision, were pre-existing conditions from other injuries or caused by degenerative changes which occur as we age.
Offering evidence from a so-called “independent medical exam” or IME is another common defense technique. Here, the insurance company and/or their lawyers usually have selected and paid a doctor to examine the plaintiff for purposes of the case, so, whether the medical exam truly independent may be questionable. Typically, the doctor writes a report concerning the plaintiff’s condition and injuries, and may also testify on these issues.
These are just a few of the many techniques that defense lawyers in your car accident case may have available. Available time and space prevent us from describing all of them. But it’s very likely that a skilled defense lawyer knows how to use them for the driver and insurance company’s benefit at trial.
After each side has presented their case in chief, generally each side will have an opportunity to present rebuttal evidence.
Plaintiff’s Closing Argument
After both sides have presented all their evidence and rebuttal it is time for closing arguments. Typically, the plaintiff goes first. The plaintiff’s lawyer has several goals during the plaintiff’s closing argument. The trial may have taken several days or weeks. All of the evidence that the jury heard, particularly early in the case, may not be fresh in the juror’s memories. Further, due to witness scheduling issues or other considerations evidence may have been presented out of what might seem to be a logical sequence.
The plaintiff’s lawyer, in closing argument, should review and draw together the evidence which support your claims. Your car accident attorney should go over the evidence which proves the other driver’s fault and the lack of fault by the plaintiff and others. If the defense submitted evidence to show that liability is other than as the plaintiff claims, the plaintiff’s lawyer may want to highlight evidence which shows why the defense claims should not be believed.
The plaintiff’s attorney should also review the damage evidence with the jury and address defenses which have been made to the damage claims. The plaintiff’s lawyer should provide a detailed explanation to the jury of the calculation of damages. Specific elements of damages like past and future medical expenses, lost income, reduced earning capacity, pain and suffering, and other elements can typically be discussed. The plaintiff’s lawyer should tell jury know how much the plaintiff is asking for and why they should award the plaintiff that amount.
Defendant’s Closing Argument
Once the plaintiff’s lawyer has finished, the defense may present their closing argument. In some cases, the defense will try to highlight the evidence which negates the plaintiff’s claims concerning the defendant’s liability. They may discuss evidence which has been admitted showing that the crash did not occur the way that the plaintiff claims or showing that the plaintiff or some other party is partially or completely at fault for the wreck. If the defendant’s liability is clear-cut enough their lawyer may actually admit liability.
The defense lawyer will almost certainly discuss the issue of damages. They will try to explain why the jury should award less damages than the plaintiff is requesting or possibly even no damages. Using evidence which was admitted during the trial, they may try to show that the medical expenses were not reasonable, that future medical expenses claimed are not necessary, that the past or projected future lost income calculations are too high, that the injuries claimed are not the fault of the defendant and possibly make a wide variety of other arguments.
After the defense has completed their closing argument, the plaintiff’s attorney may be given an opportunity to make a rebuttal argument.
Once the attorneys have completed their closing arguments, it is time for the judge to provide “instructions” to the jury. Jury instructions are relatively short statements of the law that the jurors are to use in deciding the case. Long before it is time for the judge to provide these instructions to the jury the lawyers typically will have prepared sets of jury instructions which lawyers want the judge to use and provided them to the court.
Often the lawyers are able to agree on some of the instructions to be used. In some other situations, they cannot agree, and so the judge will review the different alternatives submitted by the attorneys and decide which ones to use.
Once a final set of instructions has been determined the judge will “instruct” or “charge” the jury. This means that the judge will, in open court, read the instructions to the jury so they know what legal rules, they are required to use to decide the case. The jurors may be allowed to take copies of the instructions with them into the jury room.
After the judge has instructed the jury, they will enter or “retire” to the jury room to decide the case. The process they will go through is called deliberation. Typically, after entering the jury room, the jurors will select a “foreperson”. Often, the foreperson provides some leadership in the deliberation process, and after the verdict is rendered, will deliver it in the courtroom.
Verdict and Judgment
When the jury has reached a verdict they will let the judge know, often by sending word through a bailiff, courtroom deputy or courtroom assistant. The judge will then summon the parties and their attorneys to the courtroom for the reading of the verdict. The jury will be brought back in and seated in the jury box.
The judge will then ask the jury if they have reached a verdict. The juror selected as the foreperson will advise the court that they have reached a verdict and often present a written verdict form to the bailiff or courtroom deputy to be given to the judge. Typically, the judge will read the verdict form and announce the jury’s verdict.
If either of the parties are not satisfied with the result, they may be able to file a motion asking that the verdict be set aside, ask for other relief or appeal the judgment. There generally time limitations for either of these.